IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 35189 of 2010(W) ---------------------------------- PETITIONER(S): ------------------- 1. SMT. PINKY THAPPER, W/O. RAKESH THAPPER, B 1002, MAHAVEER RESIDENCY, LBS MARG, MUMBAI, NOW RESIDING AT 6C SKYLINE WILLOW HEIGHTS, GOSAIKUNNUAM, KURIACHIRA, TRICHR-6. 2. SMT. SNATHOSH BAVA, W/O. LATE MADANMOHAN SIGHH, RESIDING AT 6C SKYLINE WILLOW HEGHTS, GOSAIKUNNAM, KURIACHIRA, TRICHUR-6. BY ADVS. SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENT(S): -------------------- 1. THE TAHSILDAR (RR) TRICHUR DISTRICT - 680 001. 2. THE COMMERCIAL TAX OFFICER, FIRST CIRCLE TRICHUR DISTRICT - 680 001. 3. THE ASST. COMMISSIONER(ASSMT) COMMERCIAL TAXES, SPECIAL CIRCLE, TRICHUR - 680 001. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. R1 TO R4 BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.35189 of 2010-W ---------------------------------------- Dated this the 6th day of January, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P2 notice of attachment issued under Section 36 of the Kerala Revenue Recovery Act, as well as against the order of assessment finalised under Section 22(3) of the Kerala Value Added Tax Act (KVAT Act), as per Ext.P4. The 1st petitioner is the owner of the property which is attached through Ext.P2 notice. According to the petitioners the property in question was gifted to the 1st petitioner, by the 2nd petitioner and her son, by virtue of Ext.P1 and another gift deed. The revenue recovery steps as evidenced from Ext.P2 was initiated for recovery of the tax amount due from the partnership firms, namely M/s.Pooja Sales Inc, M/s.Shoe Mall and M/s.Goodwill Traders. The 2nd petitioner herein is the mother of the 1st petitioner. The other family members are the partners of the firm. In Ext.P2, the amount demanded is Rs.25,85,120/-. But according to the W.P(C) No.35189 of 2010-W 2 petitioners through Ext.P3 order of the appellate authority, the demand raised against the firm M/s.Shoe Mall was set aside and remanded for passing fresh orders. It is stated that the demand raised with respect to M/s.Goodwill Traders is only a sum of Rs.20,000/-. With respect to the third firm, M/s.Pooja Sales Inc, the demand pertains to Ext.P4 order of assessment. According to the 1st petitioner the said assessment was finalised on an ex-parte basis since the firm could not file objections to the proposal notice. Under such circumstances contention of the petitioners is that the amount for which the recovery steps are now being proceeded, is not for recovery of the real amount due and that the coercive steps are proceeded without revising the revenue recovery requisitions. The petitioner also seeks indulgence of this Court in setting aside Ext.P4 order of assessment on the basis that the order was passed ex-parte. 2. It is evident from Ext.P3 order of the appellate authority that the assessment with respect to the firm M/s.Shoe Mall stands set aside. Therefore the demand if W.P(C) No.35189 of 2010-W 3 any raised with respect to the arrears of the said firm is not in existence at present. Therefore the steps initiated on the basis of Ext.P2 notice of attachment could not be pursued unless revised requisition is issued by the assessing authority concerned. Hence I am of the view that the proceedings of recovery pursued on the basis of Ext.P2 is unsustainable. 3. With respect to Ext.P4 order of assessment it is noticed that, before finalising the assessment the dealer was issued with a notice and in response to the same the dealer had submitted a request for adjournment. It is evident from Ext.P4 that, considering such request, time was granted to the dealer to file objections. But they failed to submit any objections and to co-operate with finalisation of the assessment. It is further noticed that the order in question was issued as early as on 19.5.2009 and the dealer has not availed any remedy by way of appeal against such assessment. 4. Under such circumstances, it is highly improper W.P(C) No.35189 of 2010-W 4 for this Court to quash Ext.P4 after a long lapse of time, bye passing the effective statutory remedy of appeal. 5. Under the above circumstances, the writ petition is disposed of quashing Ext.P2 notice and further recovery steps on the basis of Ext.P2. The respondents 2 and 3 are directed to issue fresh requisition on the basis of Ext.P3 order of the appellate authority, after finalising the modified assessment, if not already issued. It is made clear that the petitioners will be at liberty to invoke statutory remedy of appeal against Ext.P4 order of assessment and also to seek appropriate interim relief against realisation of the amount in dispute. 6. Learned counsel for the petitioners seeks indulgence of this Court to keep in abeyance recovery of amounts covered under Ext.P4 for a short period on the basis that the dealer will take appropriate steps against Ext.P4 within that time. 7. Having considered the facts and circumstances, I am of the view that the recovery of amounts covered under W.P(C) No.35189 of 2010-W 5 Ext.P4 can be directed to be kept in abeyance for a reasonable period in order to facilitate the petitioner to challenge Ext.P4 before the appellate authority. Therefore, recovery of amounts covered under Ext.P4 is stayed for a period of six weeks from today. 8. It is made clear that attachment if any made, against the immovable property on the basis of Ext.P2 will continue to be enforce. C.K.ABDUL REHIM JUDGE ab