Allowed

The Deputy Commissioner of Commercial Taxes v. K.J.Kurian

Kerala HC9 Sept 2016OP(C)/3501/2013

Case brief

AI extract

What is this about?

The High Court quashed an interim order allowing the attachment of tax collected by a dealer before it became due. Relying on Section 49A of the Kerala General Sales Tax Act and Section 79A of the VAT Act, the bench held that a statutory bar exists against attaching such funds, irrespective of other legal provisions.

What did the court decide?

The impugned interim order (Ext.P2) allowing attachment of tax is quashed.

The Deputy Commissioner of Commercial Taxes Vs… — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938

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OP(C).No. 3501 of 2013 (O)

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AGAINST THE ORDER OF ADDL SUB COURT, MUVATTUPUZA DATED 19.7.2013 IN E.A NO.205/12 IN E.P.NO.81/12 IN LAR NO.70/2006

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PETITIONER(S)/PETITIONER :

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THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES ERNAKULAM.

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BY ADV.C.K.GOVINDAN, GOVERNMENT PLEADER

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RESPONDENT(S)/RESPONDENTS :

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1. K.J.KURIAN S/O. JOHN, RESIDING AT KULANGARA HOUSE, KADATHY KARA, MARKET P.O., MUVATTUPUZHA, PIN-686 673.

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2. BHARAT PETROLEUM CORPORATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR, CORPORATE OFFICE, KUNDANNOOR, MARADU, ERNAKULAM-682 304.

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R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SRI.P.GOPINATH R2 BY ADV. SRI.P.BENNY THOMAS R2 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.M.S.UNNIKRISHNAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3501 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------P1 : COPY OF THE BALANCE STATEMENT AND ATTACHMENT OF SCHEDULE FILED IN EP NO.81/2012 IN LAR NO.70/2006.

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P2 : COPY OF THE INTERIM ORDER OF THE ADDL.SUB COURT, MUVATTUPUZHA DTD.19.7.2013 IN EA NO.205/2012 IN EP NO.81/2012.

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RESPONDENT(S)' EXHIBITS ----------------------NIL

TRUE COPY

SKS

P.A TO JUDGE

“CR”

K.HARILAL, J.

.................................................... O.P(C).NO.3501 OF 2013 ..................................................... Dated this the 9^th day of September, 2016

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JUDGMENT

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The petitioner is the Deputy Commissioner of Commercial Taxes, Ernakulam, and the second respondent is a registered dealer as well as an assessee on the files of the Assistant Commissioner of Commercial Taxes (Assessment), Special Circle, Ernakulam. The first respondent is the decree holder in LAR No.70/2006 on the files of the Sub Court, Muvattupuzha. The said LAR was filed for enhancement of compensation and decreed in favour of the claimant/decree holder. Subsequently, the decree holder filed E.P.No.81/2012 for realisation of the decree amount. Thereafter, they filed E.A.No.205/2012 in E.P.No.81/2012 for attachment of an amount of 15,52,377/-₹ which was kept by the petitioner for paying to the Government as sales tax and the court below allowed E.A.No.205/2012 by Ext.P2 order.

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According to the petitioner, the impugned order is passed in violation of Order XXI Rule 46 of the Code of Civil Procedure and Sec.49A of the Kerala General Sales Tax Act. On

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O.P(C).NO.3501 OF 2013

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the above premises, this Original Petition (Civil) is filed to quash Ext.P2 order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

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Heard the learned Government Pleader appearing for the petitioner and the learned counsel appearing for the respondents.

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The sum and substance of the arguments advanced by the learned Government Pleader is that the impugned order is passed in violation of Order XXI Rule 46 of the Code of Civil Procedure and Sec.49A of the Kerala General Sales Tax Act. In support of the arguments, the learned Government Pleader cited an order passed by this Court in WA.No.388/2014 and WP(C) No.21626/2013 dated 13.3.2014 and produced an Official Memorandum dated 24.6.2014 issued by this Court to all the Subordinate Courts under the High Court of Kerala.

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Sec.49A of the Kerala General Sales Tax Act and Sec.79A of the Kerala Value Added Tax Act are in pari materia and they read as follows:

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Sec.49A of the Kerala General Sales Tax Act, 1963 - Bar against attachment in certain casesNotwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any

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O.P(C).NO.3501 OF 2013

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order attaching any amount from any person out of the tax collected by such person under the Act and kept with him before it became due to Government.

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Sec.79A of the Kerala Value Added Tax Act, 2003

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Bar against attachment in certain cases - Notwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any order attaching any amount from any person, out of the tax collected by such person under the Act and kept with him before it became due to Government.

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Obviously, it is discernible from the above provisions

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that the Court or any Authority shall not pass any order attaching any amount from any person, out of tax collected by such person under the Act and kept with him. Thus a statutory bar is created against issuance of garnishee orders.

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The Division Bench of this Court in WP(C) No.21626/2013, held that Sec.49A of the Kerala General Sales Tax Act, 1963 and Sec.79A of the Kerala Value Added Tax Act, 2003 created a statutory bar against attachment of tax collected and kept by any person before it became due to the Government and directed the Registry of this Court to issue instructive communications in the form of circulars or otherwise, as may be

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O.P(C).NO.3501 OF 2013

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found appropriate to alert the Civil Courts and Judicial Officers manning those Courts about Sec.49A of the Kerala General Sales Tax Act and Sec.79 A of the Kerala Value Added Tax Act.

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In compliance with the said direction the Registry of this Court has issued an Official Memorandum dated 24.6.2014 making the said proposition as a binding instruction on all the Subordinate Courts. As per the said Official Memorandum all Subordinate Judicial Officers are instructed to take note of the bar against attachments specified in Sec.49A of the Kerala General Sales Tax Act and Sec.79A of the Kerala Value Added Tax Act, while issuing garnishee orders against dealers collecting tax either under the Kerala General Sales Tax Act or under the Kerala Value Added Tax Act, in furtherance of attachments imposed against the State, either during the course of execution of decrees or otherwise.

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Going by the order cited by the learned Government Pleader, it is seen that the issue involved in this Original Petition now stands covered by the aforesaid order wherein this Court has elaborately considered the scope and extent of Sec.49A of the Kerala General Sales Tax Act and Sec.79A of the Kerala Value Added Tax Act and unequivocally held that the amount collected as tax cannot be attached in execution of the decree or

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O.P(C).NO.3501 OF 2013

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otherwise in view of the bar imposed under Sec.49A of the Kerala General Sales Tax Act and Sec.79A of the Kerala Value Added Tax Act.

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To sum up, the impugned order is passed in violation of Sec.49A of the Kerala General Sales Tax Act and Sec.79A of the Kerala Value Added Tax Act. In the above view of the matter, Ext.P2 is quashed and this Original Petition is allowed.

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K.HARILAL, JUDGE

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sks/17/9/2016

The Deputy Commissioner of Commercial Taxes v. K.J.Kurian

Case brief

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The Deputy Commissioner of Commercial Taxes v. K.J.Kurian

Case brief

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