Disposed

Harikrishnan.G v. State of Kerala

Kerala HC1 Oct 2020WP(C)/16352/2019

Case brief

AI extract

What is this about?

This writ petition challenged recovery notices issued against a director under the erstwhile Kerala VAT Act. The Court held that Section 39 liability on directors is subsidiary to recovery from the company under Section 38. While directing disposal of representation, it kept recovery against the petitioner in abeyance pending proof of resignation to the Registrar.

What did the court decide?

Recovery proceedings against the petitioner are ordered to be kept in abeyance for two months to allow him to submit material to the 3rd Respondent.

Harikrishnan.G Vs State of Kerala — GST and Indirect Tax | Kerala HC (2020)

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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 AMIT RAWAL

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THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942

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WP(C).No.16352 OF 2019(T)

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PETITIONER:

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HARIKRISHNAN.G AGED 47 YEARS S/O.GOPALAKRISHNAN NAIR, AMRITHA MADHAVAM, TEMPLE ROAD, EDAYAKUNNU, SOUTH CHITTOOR, ERNAKULAM-682 027.

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BY ADVS. DR.K.P.PRADEEP SRI.SANAND RAMAKRISHNAN SMT.NEENA ARIMBOOR SRI.T.T.BIJU SMT.T.THASMI SMT.ANJANA KANNATH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE COMMISSIONER OF GST, KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM-695 002.

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3 ASSISTANT COMMISIONER(WC AND LT), OFFICE OF THE DEPUTY COMMISSIONER WORKS CONTRACT AND LUXURY TAX COMMERCIAL TAXES DEPARTMENT/KERALA STATE GOODS AND SERVICE TAX MATTANCHERY, ERNAKULAM-682 002.

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4 DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM.

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WP(C).No.16352 OF 2019(T)

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5 DEPUTY TAHSILDAR(RR), KANAYANNUR TALUK, TALUK OFFICE, KANAYANNUR, ERNAKULAM-682 018.

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6 ATLAS GOLD TOWNSHIP INDIA PVT.LTD., D NO.249 A WARD IX-SIVANARAYANA TEMPLE ROAD, NEDUMBASSERY, NAYATHODE P.O., ERNAKULAM-683 572, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY GOVERNMENT PLEADER

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SR GP SRI C K GOVINDAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.16352 OF 2019(T)

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JUDGMENT

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Dated this the 1st day of October 2020

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The petitioner was a director of M/s ATLAS Gold Township India Pvt. Ltd., 6^th respondent, one among the 'ATLAS Group of Companies'. The said Company was dealing in the construction of residential and commercial flats. In the instant petition challenge has been laid to the series of recovery notices Exts.P1(a) to P1(e) for recovery of the outstanding dues under the erstwhile Kerala Value Added Tax Act, 2003. In fact, it relates to the default of the tax arrears of the 6^th respondent Company. Learned counsel appearing on behalf of the petitioner submits that during the course of employment with 'ATLAS Group of Companies', petitioner was offered the Directorship in the 6^th respondent Company and he officiated as the Director from 02.08.2014 to 12.02.2015, till he resigned as per Form DIR 12 (Ext.P2). His resignation was accepted by the Board of Directors and a resolution in this regard dated 12.03.2015 was also passed (Ext.P4). Recovery notices are pertaining to the default of the arrears

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WP(C).No.16352 OF 2019(T)

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of tax dues with effect from 2009-10 onwards. The respondent Authorities could not have initiated steps as in view of the provisions of 38 of the erstwhile Act, envisaging first charge, of revenue, on the property of the Company. Though Section 39 also imposes the liability on the Director in case the due amount is not recoverable from the assets, but in the absence of any such steps to recover the arrears of tax against the company, impugned demand has been raised against the petitioner which is clear case of illegality. In this regard, the petitioner had submitted a representation on 29.05.2018 to the 3^rd respondents ie., Assistant Commissioner (WC &LT), Office of the Deputy Commissioner Works Contract and Luxury Commercial Tax Department/Kerala State Goods and Service Tax Mattanchery, Ernakulam. But no action on that has been taken. The petitioner would be satisfied in case of an appropriate direction for disposal of his representation in accordance with law, is issued, so that he can be absolved himself from the alleged liability.

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WP(C).No.16352 OF 2019(T)

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Sri.C.K.Govindan, the learned counsel appearing on behalf of the respondents submits that there is no illegality or the demand cannot be said to be erroneous in view of the provisions of Section 39 of the Act. Arrears of tax with effect from 2009-10 and 2016-17 were due and for recovery, steps have been taken against the assessee Company as well as the Director. The assessee Company submitted an application dated 24.11.2014 for amendment in the registration details of the assessee in order to incorporate the name of the petitioner and necessary amendment was made. No documents have been shown to the department with regard to the resolution as it has seen for the first time in the writ proceedings. As per the provisions of sub Section 3 of Section 31 of the Act, in case of default of the tax the whole amount outstanding from the date of the default becomes immediately due and urges this Court for dismissal of this writ petition but submits that the 3^rd respondent would not be averse in case the petitioner is directed to appear before the

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3^rd respondent in support of the contents of the

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WP(C).No.16352 OF 2019(T)

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representation Ext.P6.

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I have heard the learned counsel for the parties and appraised the paper book. Sections 38 and 39 produced in the writ petition leaves no manner of doubt that the revenue is well within jurisdiction to initiate steps of recovery against the assets of the company which will be the first charge and as well as the Directorship. The initiation of recovery proceedings is sine-qua-non and cannot be interdicted through legal proceedings until and unless there is a gross illegality. If it all the petitioner had already submitted resignation and accepted by the Company by the resolution and this intimation has been communicated to the Registrar of the Companies or otherwise. In my view, it is appropriate to dispose of the writ petition by keeping the action of recovery vis-a-vis the petitioner in abeyance so that the petitioner is given an opportunity to place before the 3^rd respondent any documents in support of the contentions made herein above.

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Accordingly, this writ petition is disposed of by issuing

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WP(C).No.16352 OF 2019(T)

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directions to the 3^rd respondent to decide the representation Ext.P6 in accordance with law after affording an opportunity of hearing to the petitioner. The petitioner is at liberty to place on record any material already attached in the writ petition or any additional material, if it deem so necessary for the purpose of absolving him from the liability. Let this entire exercise be undertaken within a period of two months. Till then the recovery proceedings qua the petitioner are ordered to be kept in abeyance.

Sd/-

AMIT RAWAL

JUDGE

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WP(C).No.16352 OF 2019(T)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2017/7638/07 DATED 08.11.2017 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P1 A TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2017/7640/07 DATED 08.11.2017 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P1 B TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2017/7646/07 DATED 08.11.2017 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P1 C TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2018/5265/07 DATED 23.04.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P1 D TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2018/5267/07 DATED 23.04.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P1 E TRUE COPY OF THE RECOVERY CERTIFICATE IN FORM 25 NO.RRC NO.2018/5271/07 DATED 23.04.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE FORM DIR 12 WITH RESPECT TO THE 6TH RESPONDENT COMPANY. EXHIBIT P3 TRUE COPY OF THE RESIGNATION LETTER DATED 12.02.2015 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE RESOLUTION OF THE 6TH RESPONDENT ON 12.03.2015 WITH RESPECT TO REMOVAL OF THE PETITIONER FROM DIRECTORSHIP. EXHIBIT P5 TRUE COPY OF THE FORM DIR 12 WITH RESPECT TO THE 6TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED DATED 29.05.2018 SUBMITTED TO THE 3RD RESPONDENT.

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WP(C).No.16352 OF 2019(T)

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RESPONDENT'S EXHIBITS:

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EXHIBIT R3A TRUE COPY OF THE APPLICATION FOR AMENDMENT IN REGISTRATION DETAILS DATED 24/11/2014 WITH SUPPORTING DOCUMENT EXHIBIT R3 B TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE COMPANY DATED 23/1/2010 EXHIBIT R3 C TRUE COPY OF THE NOTICE DATED 18/7/2019

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//TRUE COPY// P.A TO JUDGE

Harikrishnan.G v. State of Kerala

Case brief

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Harikrishnan.G v. State of Kerala

Case brief

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