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2018 DIGILAW 901 (KER)

Naseera A. P. v. State of Tax Officer

2018-11-07

DAMA SESHADRI NAIDU

body2018
JUDGMENT : 1. The petitioners are the mother and the daughter; the fourth respondent is the husband and father. He is a partner in a business, which is an assessee under the Kerala Value Added Tax Act. 2. For the assessment year 2004-2005, the firm with three partners owed certain arrears of tax. Now, the arrears have accumulated to about 2.5 lakhs rupees. To recover them, the Department initiated proceedings. And as a part of those proceedings, it attached the fourth respondent's share in his ancestral property. 3. The first petitioner wife has strained marital relationship with the fourth respondent. Estranged and pushed out of the matrimonial fold, the first respondent was constrained to fend for herself and her daughter, dependent on her. Then, she filed OP No.706 of 2013 before the Family Court, Irinjalakuda, for the return of property and other valuables from the fourth respondent. The Family Court allowed the OP as follows: “(a) Respondent is directed to return 102½ sovereigns of gold or its market value at the tune of Rs.22,42,000/- (rounded) and cash of Rs.2,00,000/-to petitioner within 6 months from the date of this judgment. (b) He is also directed to pay Rs.15,000/- as future maintenance to petitioner and to her minor 3 children from the date of this petition until further orders. (c) In case, respondent is not complying with the above conditions, petitioner is authorized to recover the amount with 6% interest per annum from the date of petition till realization from respondent and his assets by due process of law.” 4. As the fourth respondent did not comply with the Ext.P4 judgment, the first petitioner filed an execution petition and eventually secured the Ext.P5 sale certificate. In fact, that sale certificate covers the property, which the Department had already attached. When, on further enquiries, the wife came to know about the attachment, she also came to know that the Department floated an amnesty scheme for the defaulting dealers. To take advantage of that scheme, she filed, through her daughter, the Ext.P7 application before the Department. But the Department rejected her request. 5. Assailing the Ext.P8 order of rejection, the petitioners, mother and daughter, have filed this writ petition. 6. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 7. The amnesty scheme allows any aggrieved person to apply under it. But the Department rejected her request. 5. Assailing the Ext.P8 order of rejection, the petitioners, mother and daughter, have filed this writ petition. 6. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 7. The amnesty scheme allows any aggrieved person to apply under it. The petitioners' counsel, indeed, contends that the wife and daughter, too, are the aggrieved persons, for they have an interest in the assessee's estate. To elaborate, the learned counsel has submitted that the fourth respondent has acted vindictively and with spite. Instead of taking advantage of the amnesty scheme and securing the property, he let go of it. It was only to ensure that his wife would get nothing out the decree she secured: she could not proceed against the property. In other words, he would rather let the government have the property than his wife and daughter. The matrimonial discard and animosity are writ large. 8. So relying on Benoy Kurian v. Agricultural Income Tax Officer, 1997 (2) KLT 922 the petitioners’ counsel urges this Court to set aside the Ext.P8 and direct the Department to reconsider the petitioners' plea for amnesty scheme, so they could pay the reduced amount and save the property. 9. The learned Government Pleader, on the other hand, submits that the scheme is unambiguous: dealers alone can use the scheme. According to her, the fourth respondent is one of the three partners and, so, his properties have been attached. If desirous, he would take advantage of the Circular No.16 of 2016, dated 27.08.2016, the amnesty scheme. 10. The learned Government Pleader, then, refers to Benoy Kurian, the judgment the petitioners' counsel relied on. She submits that the extended meaning of ‘aggrieved person’ in that judgment stands on its own facts. She stresses that a purchaser stepping into the seller's shoes may answer the description of an aggrieved person—but not these petitioners. 11. Here, the second petitioner daughter, continued the Government Pleader, filed the Ext.P7 representation, rather than the first petitioner mother. To elaborate, she contends the wife filed the matrimonial proceedings and secured a decree and a sale certificate. By no stretch of imagination can the daughter be treated as an aggrieved person, not even as a person interested. So she urges this Court to dismiss the writ petition. 12. To elaborate, she contends the wife filed the matrimonial proceedings and secured a decree and a sale certificate. By no stretch of imagination can the daughter be treated as an aggrieved person, not even as a person interested. So she urges this Court to dismiss the writ petition. 12. I reckon there is, in the first blush, force in the Government Pleader's contention that the daughter has no role to play. She has none, true. But here, the daughter and the mother have made a common cause: driven out, both have to fend for themselves and the daughter apparently is a dependent. All along, the mother fought not only to secure her interest but also to secure her daughter's. In that context, the daughter’s interaction with the Department—her representations not excluded—ought to have been taken as those in a representative capacity. She is, to me, an ostensible agent of her mother, who has already secured a sale certificate. That apart, as a dependent, she too has a stake in her father’s estate. 13. In Benoy Kurian, the purchaser has applied as an aggrieved person. And this Court has accepted the purchaser's standing. Here, the position cannot be different—rather stronger, if anything. First , with the sale certificate, the wife has succeeded to her husband's interest, as if she were a purchaser. Besides that, here the fourth respondent's conduct is apparent that he deliberately refused to take advantage of the amnesty scheme because the ultimate beneficiary might be his wife and daughter. 14. Under these circumstances, both the petitioners have every right to protect their interest vis-à-vis the property. And for that, they wanted to take advantage of the scheme. Here, I reckon the petitioners have eminently answered the description of “the persons aggrieved.” I, therefore, allow the writ petition. Consequently, I set aside the Ext.P8 and direct the respondent authorities to reconsider the petitioners' application, keeping in view the Circular No.16 of 2018, and pass orders, expeditiously.