INTELLIGENCE OFFICER-I, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER (INT. ), AGRICULTURAL INCOME-TAX AND SALES TAX v. E. J. PETER.
1991-11-07
K.A.NAYAR, K.S.PARIPOORNAN
body1991
DigiLaw.ai
JUDGMENT K. S. Paripoornan, J. - The 1st respondent in O.P. No. 623 of 1991 is the appellant in this writ appeal. The original petition was filed to quash exhibit P2 notice of the 1st respondent and for other reliefs. By exhibit P2, dated January 8, 1991, the 1st respondent informed the secretary, Thrissur Heart Hospital, Thrissur, to furnish certain details and also requested the said secretary to stop further payments to the petitioner in the original petition till he produces the clearance certificate from the Revenue. Exhibit P2 was attacked as unauthorised and illegal. Sreedharan, J., by judgment dated July 1, 1991, quashed exhibit P2. The learned single Judge directed the 1st respondent to pay a sum of Rs. 1,000 by way of costs personally. The first respondent in the original petition has come up in writ appeal. We heard Senior Government Pleader Mr. V. C. James, who argued on behalf of the appellant. It was argued that the learned single Judge failed to bear in mind that it was in his anxiety to protect the interests of the Revenue the appellant (1st respondent in the original petition) issued exhibit P2 proceedings. Counsel submitted that apart from the turnover involved in works contracts, there were other turnovers also, which had to be assessed. In that perspective, the freezing of the amount due to the assessee - petitioner in the original petition, by exhibit P2, cannot be said to be illegal or unauthorised. We are unable to accept the plea of the appellant's counsel. Admittedly, exhibit P2 was issued invoking the powers vested in the appellant under section 25 of the Kerala General Sales Tax Act, 1963. The powers under section 25 can be exercised only for realising amounts due from the dealer by way of arrears of tax or otherwise. The tax or other amounts can be said to be due only in pursuance to an order of assessment and the consequential service of a notice of demand on the assessee. Admittedly no assessment order was passed in this case. There was no demand notice. No tax or other amount can be said to be due from the dealer. In such circumstances, by invoking the powers vested in the appellant under section 25 of the Act, the issue of exhibit P2 notice was unauthorised and illegal.
Admittedly no assessment order was passed in this case. There was no demand notice. No tax or other amount can be said to be due from the dealer. In such circumstances, by invoking the powers vested in the appellant under section 25 of the Act, the issue of exhibit P2 notice was unauthorised and illegal. That apart, it is conceded that the petitioner in the original petition has filed O.P. No. 4321 of 1989 and C.M.P. No. 12443 of 1989 and this Court has stayed the recovery proceedings against the assessee, the petitioner in the original petition. The order of stay, so granted by this Court, was in force on the day when exhibit P2 was issued by the appellant. The issue of exhibit P2 notice, when admittedly there was an order of stay from this Court regarding proceedings initiated against the assessee, to say the least, is improper. The learned single Judge was justified in quashing exhibit P2, in the manner he did, and in directing the appellant to pay the costs. We see no reason to interfere in this writ appeal. The writ appeal is dismissed. Writ appeal dismissed.