Sales tax recovery against persons admitted to partnership benefits and excluded during minority was held unsustainable. The court dismissed three State writ appeals, confirming protection against recovery and property attachment. It also refused to condone a 2197-day delay and dismissed the regular second appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WA.No.1521 OF 2017
AGAINST THE JUDGMENT IN WPC 5783/2014 DATED 20-09-2016 OF HIGH COURT OF KERALA
APPELLANT/S:
BY SPL.GOVERNMENT PLEADER C E UNNIKRISHNAN
RESPONDENT/S:
LAXMI VASANTH
W/O.K. SREEKANTH PADMANABHAN, AGED 47 YEARS, RESIDING AT VASANTH VIHAR, KOCHUPILAMOODU, KOLLAM.
BY ADV.HARISH GOPINATH R1 BY ADV. SRI.R.S.KALKURA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH RSA.21/2016, WA.1536/2017, WA.1551/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
RSA.No.21 OF 2016
AGAINST THE JUDGMENT AND DECREE IN AS 153/2004 DATED 10-09-2009 OF II ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM
AGAINST THE JUDGMENT IN OS 35/1999 DATED 29-06-2004 OF PRINCIPAL MUNSIFF COURT , KOLLAM
APPELLANT/S:
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.
BY SPL.GOVERNMENT PLEADER C E UNNIKRISHNAN
RESPONDENT/S:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-3-
LEKSHMY VASANTH VASANTHA VIHAR, KOCHUPILAM MOODU, KOLLAM.
R1 BY ADV. SRI.R.S.KALKURA R1 BY ADV. SRI.M.S.KALESH R1 BY ADV. SRI.HARISH GOPINATH R1 BY ADV. SMT.R.BINDU R1 BY ADV. SMT.P.ANJANA R1 BY ADV. SRI.P.I.NAJUMAL HUSSAIN R1 BY ADV. SMT.NEENU PAVITHRAN R1 BY ADV. SRI.R.HARIKRISHNAN (KAMBISSERIL) R1 BY ADV. SRI.NIKHEL K GOPINATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH WA.1521/2017, WA.1536/2017, WA.1551/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WA.No.1536 OF 2017
AGAINST THE JUDGMENT DATED 29.06.2016 IN WPC 9021/2015 OF HIGH COURT OF KERALA
APPELLANT/S:
BY ADVS.
SPL.GOVERNMENT PLEADER C E UNNIKRISHNAN SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENT/S:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-5-
2 ADDL.R2 JOSEPH LISTON S/O.JOSEPH, KALLAPURACKAL THEKKEVEETTIL, EDAKOCHI.P.O., ERNAKULAM DISTRICT, 682 010, REPRESENTED BY POWER OF ATTORNEY HOLDER VARGHESE PAILY, AGED 47 YEARS, S/O.SRI.A.V.PAILY, AKKAPADICKAL HOUSE PANDARACHIRA ROAD, KADAVANTHRA .P.O., ERNAKULAM-682020.
((ADDL.R2 IS IMPLEADED AS PER ORDER DATED 03/01/2019 IN IA.NO.01/2018)
R1 BY ADV. SRI.HARISANKAR V. MENON R2 BY ADV. N.V.VINAY R2 BY ADV. VANI S KUMAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH RSA.21/2016, WA.1521/2017, WA.1551/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WA.No.1551 OF 2017
AGAINST THE JUDGMENT DATED 29.09.2016 IN WPC 32715/2014 OF HIGH COURT OF KERALA
APPELLANT/S:
BY SPL.GOVERNMENT PLEADER C E UNNIKRISHNAN
RESPONDENT/S:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-7-
LAXMI VASANTH
W/O.K.SREEKANTH PADMANABHAN,RESIDING AT VASANTH VIHAR,KOCHUPILAMOODU, KOLLAM.691 306.
BY ADV. HARISH GOPINATH R1 BY ADV. SRI.R.S.KALKURA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH RSA.21/2016, WA.1521/2017, WA.1536/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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J U D G M E N T
[ WA.1521/2017, RSA.21/2016, WA.1536/2017, WA.1551/2017 ] Dated this the 3rd day of March 2021
S.V. Bhatti, J.
The State of Kerala (for short 'the State') is the appellant
in the instant Writ Appeals and the Regular Second Appeal . Lekshmi Vasanth and J Raj Mohan Pillai are the contesting respondents (for short, 'L.V' and 'R M P' respectively).
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
Court, Kollam, filed the appeals, in the order referred to above.
W.P.(C) No. 5783 of 2014 was filed by 'L V' for writ of
mandamus directing the District Collector, Kollam and his Subordinate Officers to accept tax payable on the property of the 'L V' comprised in 37 cents equivalent to 14 Ares 94 square meters in Survey No.244 of Eravipuram Village covered by Block No.145 and simultaneously direct respondents to strike off all entries and obliterate attachment of property effected for alleged recovery of sales tax arrears of M/s.Malabar Cashew
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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Nuts and Allied Products, a partnership Firm, (for short 'the Firm'), entered in the revenue books. The writ petition was allowed vide judgment dated 09.06.2016 and hence, W.A No.1521 of 2017 at the instance of the State.
4.1 W.P(C). No.9021 of 2015 was filed by 'R M P' praying
writ of ceritiorari and quash Ext.P5 05.11.2012 as illegal and unconstitutional. On 29.06.2016, the writ petition was allowed and hence W.A No.1536 of 2017 at the instance of the State.
4.2 W.P(C) No.32715 of 2014 was filed by 'L V' for the relief of a writ of certiorari to call for the records leading up to and inclusive of Exts.P11 to 13, and to quash Exts.P11 to 13 as grossly illegal and unconstitutional. On 20.09.2016 the writ petition was allowed; and the State, aggrieved thereby, filed W.A No.1551 of 2017 .
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
Court of Kollam was filed by 'L V' for the reliefs of declaration and perpetual injunction against the State, the Tahsildar and the Village Officer. The plaint schedule consists of the property and building lying in Sy.No.244 of Eravipuram Village (Resurvey No.145/19). The learned trial judge on 29.06.2004, dismissed O.S. No.35/1999. 'L V' filed A.S No.153 of 2004 before the II Additional District Judge, Kollam and the learned Appellate Judge vide judgment dated 10.09.2009 allowed the appeal as prayed for. Hence, RSA No.21 of 2016 has been filed by the State with an application to condone the delay of 2197 days in presenting the RSA No.21 of 2016.
Unnikrishnan for the State, the learned Advocates Mr.Harish Gopinath and Mr.Harishankar Menon for Lakshmi Vasanth and Raj Mohan Pillai respectively.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
initiated, by the State through the District Collector. As part of its efforts, the State attempted to attaching the property covered by the schedule in O.S. No.35 of 1999. 'L V', as noted above, filed the suit and finally resulted in the decree as prayed for vide judgment and decree in A.S. No.153/2004 dated 10.09.2009.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
05.11.2012 [Ext.P5 in W.P.(C) No.9021/2015] determining liability on 'R M P' and 'L V' also.
cases between parties: The Firm was a dealer registered with Commercial Tax Office, Kollam, and as per the admitted details furnished by the Assistant Commissioner (Assessment), Special
Circle, Commercial Taxes dated 08.10.2012, the Firm was registered vide document dated 11.12.1964 with P Santhakumari Amma, V K Jishnu Nair and J Mohandas Rajan (Minor) as partners of the said Firm. Between 1964 and 1973, M/s. Malabar Cashew Nuts and Allied Products was reconstituted as many as six times. This judgment need not refer to these changes i.e., either inclusion or exclusion of partners of Firm during the said period, for, those details have no bearing on the merits of cases on hand. The first important
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reconstitution was on 01.01.1975, and the constituent partners
of the Firm as on that date are detailed as under:
Partners-
Minor Partners admitted for the benefits of partnership Firm
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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Santhakumari Amma, V K Jishnu Nair, and four minors admitted to the benefits of partnership, i.e., R Sobha Vasanth, R Jyothi Vasanth, R Lakshmi Vasanth [L V], and J Raj Mohan Pillai [R M P], were retired or to use the expression of these parties removed from the Firm. One N Sarojini Amma was admitted as a partner. Therefore, the case of both 'R M P' and 'L V' is that they were minors when included for the benefits of the Firm and also minors when removed from the constitution of the Firm.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
9021/2015 challenging Ext.P5 dated 05.11.2012 on several grounds of law and fact.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
the sales tax arrears of the Firm.
W.P.(C) No.9021/2015
13.1 The appellant/State filed counter affidavit. The reply of the State, adverted to briefly, is that the minors 'L V' and 'R M P' have failed to conform to the requirement of Section 30(5) read with proviso of Act 1932. The retiring partners upon
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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reconstitution of Firm, have not intimated to the Department in terms of Rule 5(8)(b) of KGST Act read with Rules, 1963. The reconstitution of Firm, in several points in time, does not comply with the requirement of giving public notice. Further, the Registrar of Firms was informed on 15.09.1987. Consequently, the intimation is beyond the time limit prescribed in Section 30(5) of Act 1932. Therefore, by inference, 'R M P' and 'L V' though were admitted to Firm as minors, by virtue of their failure to exercise the option under Section 30(5) of Act 1932, are deemed to be partners continuing in the Firm and hence are liable to the tax arrears of the Firm between 1970 and 1995.
13.2 The learned Single Judge, through the judgment under appeal, has noted that it is trite, that a minor cannot be made liable for the liability of the Firm. The sales tax dues
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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relate to the period 1970-71 to 1995-96. Going by the record, 'R M P' was admitted to the benefits of partnership during 01.01.1975 to 01.01.1976. The State and the District Collector referred to Sections 30, 30(5), 30(7) and 35 of the Partnership Act, to impose liability on the minor partners. After extracting Section 30, the learned Single Judge posed the question whether the petitioner who was a minor had issued notice in terms of Section 30(5) of Act 1932. Thereafter, examined the materials produced on record and held that the record clearly shows that he, i.e., 'R M P', had ceased to be a person admitted to the benefits of partnership with effect from 01.01.1976. Therefore, in the fact situation of this case it has been held that Section 30(5) to (7) do not arise for consideration at all. The finding of fact recorded by the learned Single Judge is that the minor partner ceased to have any concern with the Firm with effect
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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from 01.01.1976. The right of Department to recover the revenue dues from other partners is not shut out by the judgment. Hence, for the aforementioned reasons, allowed W.P. (C) No.9021/2015, which resulted in setting aside Ext.P5 dated 05.11.2012.
that Section 30(5) and (7) of Act 1932 are attracted to the case on hand. The minor partners, either by choice or otherwise, did not act in the manner obligated by law within the period of six months from the date of attaining majority. The consequence thereof is that the minors admitted to the benefits of Firm continue to be partners and the liability accrued to the Firm is answerable by the minors. In other words, the minors continue to be the partners of the Firm and the liability fastened by Ext.P5 order is sustainable in law.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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petition was ordered by this Court. Accepting the said judgment, recovery proceedings against Santhakumari Amma were abandoned by the State. The retirement of a partner with effect from 01.01.1976 being accepted and recovery abandoned against Santhakumari Amma, the minors i.e., 'R M P' and 'L V', who were also retired with effect from 01.01.1976, should be given same treatment if not more. Therefore, the steps now taken against erstwhile minors for realizing the sales tax arrears of the Firm for a slab period 1970 to 1995 are illegal and unconstitutional. This Court, in the judgment in W.P.(C) No.4179/2002 noted, and, in effect, accepted the reconstitution of Firm with effect from 01.01.1976. Therefore, the minor partners 'R M P', 'L V', etc on attaining the majority were not in the partnership Firm at all to exercise the option. The finding of the learned Single Judge, according to him, is clear on these
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-24-
aspects and no ground is made out warranting interference of this Court in the instant intra-Court appeal. According to him, Ext.P5 dated 05.11.2012 has misunderstood the directives issued in judgments in W.P.(C) Nos.23498/2008, 19555/2009 and 2029/2009 and W.A.No.481/2013. Imposition of liability on minor partners should be clear, strictly in accordance with law and the Department having accepted the intimation of reconstitution from time to time, cannot introduce a comfortable plea in law that there is no public notice; that option under Section 30(5) of Act 1932 was not exercised or intimation under Rule 5(8)(b) of KGST Rules was not given.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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manner; the minors are not concerned with the Firm on the date of attaining majority; calling upon minors upon becoming
majors, to exercise option under Section 30(5) is completely artificial and unwarranted. The minors have chosen to ignore the entry and exit from the Firm. For the purpose of tax liability they cannot be treated as partners continued even beyond the period of reconstitution.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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18.1 On 19.03.2012 the learned Single Judge disposed of the writ petition and the operative portion of the judgment reads thus:
“16. Pursuant to the revision filed by the petitioner in W.P(C) No.19555/2009, the matter was remanded by the Government as per Ext.P3, directing the District Collector to take necessary steps to enquire and arrive at the actual facts and figures of partnership and to proceed against all the persons who were partners of the firm for the period for which the arrears fell due to the Government. The specific submission made by the learned counsel for the petitioner in this case is that, since Ext.P3 has become final, it is no more open to the District Collector to have directed the second respondent to conduct any enquiry as to the status of the petitioner. But it has to be borne in mind, that the proceedings were finalized by the Government as per Ext.P3, in relation to the correctness and sustainability of the steps taken by the concerned respondent under Section 65 of the R.R. Act. Under Section 65 of the R.R. Act, only two
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-27-
ingredients are to be satisfied; ie., with regard to the mandatory requirement of issuance of a notice under Section 34 and so also as to the satisfaction of the authority concerned as to the means involved and the conscious default on the part of the defaulter in evading the payment. It was in the above context, that some observations have been made in Ext.P3 and this being the position, this Court finds that the matter requires to be dealt in detail, touching all the aspects including as to the extent of rights and interest in partnership, the relevant period, the cessation of membership and such other details. (emphasis supplied)
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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as to put a finality to the issue, more so, when the petitioners are brother and sister and that the transaction is in respect of the involvement in the same partnership concern. (emphasis supplied) 18. The specific direction given by this Court as per Ext.P11 judgment was to the District Collector, to finalize the proceedings, whereas, the District Collector has relegated the duty to be discharged by the second respondent, vide Ext.P12; which is not correct or proper. This Court makes it clear that the proceedings have to be finalised by the District Collector himself i.e., the first respondent in W.P.(C).No.19555/2009.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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hearing to the parties concerned as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment. Attachment already ordered will continue till the proceedings are finalised as above.”
18.2 'R M P', apprehending that a few of the observations in W.P.(c) No.19555/2009 are conclusively decided by the learned Single Judge, filed W.A. No.481/2013 against the judgment in W.P.(C) No.19555/2009. The Division Bench, after taking note of the objection of appellant , clarified the position in para 7 of the judgment as follows:
“7. On perusal of paragraphs 12,13 and 14 what we notice is, after discussing the facts on record with reference to the Partnership Act how a public notice has to be issued and what contemplated in Section 30(5) and within what time such public notice has to be given, learned Single Judge did not opine finally that there is no scope for fresh consideration of the matter. Reading of paragraphs 16 and 19 clearly indicate, it was open to the appellant herein,when the matter is remitted back to the District Collector, to establish that there was no obligation on him to discharge loans as he ceased to be the partner much prior to attaining majority ie 01.01.1976. If a
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
-30-
controversy arises with regard to issuance of public notice as stipulated under Section 30(5) of the Act, it has to be decided only with reference to date of attaining majority by the minor partners. If the partners were to be excluded from the partnership with effect from 1976 question of giving any public notice as contemplated under Section 30(5) would not arise. Therefore, if the appellant was able to establish that there was proper exclusion of this appellant from the partnership with effect from 01.01.1976, the consideration of the matter under Section 30(5) of the Act would not arise. If no convincing material is forthcoming regarding the exclusion of minor partner from the benefits of partnership with effect from 01.01.1976, then a duty is cast on the minor partner on attaining majority to follow the proceedings contemplated under Section 30(5) of the Act.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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Judge P R Ramachandra Menon, as he then was, disposed of the writ petition filed by Santhakumari Amma. The circumstances leading to admitting P Santhakumari Amma into partnership
and retirement with effect from 01.01.1976 are adverted to in paragraphs 10 and 11 and read thus:
“10. It has been specifically stated in the reply affidavit filed by the petitioner that, Form No.3 was submitted along with Ext.P5 deed before the second respondent. It is to be noted, 'Form No.3' is just an intimation and no minute factual aspects or such other details have to be included therein, as to the business or the relative rights and interests, except as stipulated therein.
'Form No.3' is in the following terms:
“I/We(have)..... ......of ......(address)......hereby declare that I/We ceased my/our connection with the above business with effect on and from.
----------------------------------------------------------------------------------Name of person Amount of nature of previous share in the business (1) (2) ----------------------------------------------------------------------------------Place: Date: Signature.”
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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The learned counsel submits that in view of the nature and contents of 'Form 3', it will not be accepted unless and until the same is produced along with the supporting documents i.e., Ext.P5 deed. Since there is no case of the respondents that they did not receive Ext.P5 reconstitution deed, it cannot be swallowed without a pinch of salt, when the second respondent contends that 'Form 3' was never submitted by the petitioner in conformity with Rule 5(8)(b). 11. The petitioner has got a further contention that the averment in the counter affidavit filed on behalf of the second respondent, that no 'Form 3' was submitted by the petitioner cannot be taken as it is, for the obvious reason that the deponent who has sworn to the affidavit (stated as done on behalf of the second respondent) is not having the custody and competency to do the same. It is pointed out that 'Form 3' is actually available with Ext.P9 in the records of the second respondent (Assistant Commissioner, Assessment ), whereas the counter affidavit filed is by the Assistant Commissioner ( Law ) attached to the office of the Joint Commissioner (Law). This Court, however, does not make any comments in respect of the said averment, for the reason that, it is not necessary to be examined, in view of the observations and finding arrived at already.”
(emphasis supplied) 19.1 The District Collector through Ext.P5 has called for a
report from the Office of Assistant Commissioner, Commercial
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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Taxes, and the report is excerpted in Ext.P5 order dated 05.11.2012. It is useful to refer to:
“As per the documents available at the office of the Assistant Commissioner, Commercial Taxes, Kollam the details of partners of Malabar Cashews are as under:
I. Partners vide partnership deed dated 11.12.1964
II. xxx xxx xxx”
05.11.2012, let us, at the outset, appreciate a few intricacies
which have bearing on the claim of State to proceed against the
erstwhile minor partners for recovering the tax arrears of the Firm. Firstly, in the order dated 05.11.2012 the District Collector has set out in detail the names of partners of the Firm
at different points in time. As noted earlier, in this writ petition
we are primarily concerned with the reconstitution of Firm on
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01.01.1975 and 01.01.1976. The minor partners, including 'R M P' and 'L V', have been, at the first instance, included in the partnership Firm only for the benefits of the Firm and removed/deleted with effect from 01.01.1976. The very next reconstitution on 01.02.1978 was informed to the Department and the Department accepted the details of partners reconstituted on 01.02.1978. In this reconstitution of Firm the names of minor partners and also one P Santhakumari Amma are not detailed in the array of partners. Therefore, it ought to have been objectively appreciated by the 2nd appellant/District Collector while determining the liability of different sets of partners. The order in Ext.P5, straight away it can be stated, could be remarked that without actually appreciating the legal nuances of the information submitted by the Firm to the Department, and accepted by the Department has come to a
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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very broad finding that the partners failed to submit or prove that they were to be absolved from the liability of the Firm for the period 1970-71 to1995-96. We are of the view that the Department, having accepted reconstitution of Firm even subsequent to 01.01.1976, cannot be allowed to contend that the information furnished by the Firm to the Department is not conforming to the requirements of law.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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observation in that behalf.
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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regarding the exclusion of minor partner from the benefits of partnership with effect from 01.01.1976, then a duty is cast on the minor partner on attaining majority to follow the proceedings contemplated under Section 30(5) of Act 1932. We are of the view that the view taken by the Division Bench, insofar as the applicability of Section 30(5) of Act 1932, has been, in the peculiar circumstances of this case, clearly conditioned by the Division Bench. In spite of above conclusion, the Department still insists exercising option, notice etc. to realise arrears from 'R M P' & 'L V'. After perusing the record, we are of the view that the finding of the learned Single Judge that the Department is not justified in law and fact in proceeding against the erstwhile minor partners is justifiable and for the additional reasons stated supra, we are of the view that the judgment under appeal does not warrant interference and liable to be
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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rejected.
Hence, W.A. No.1536/2017 is liable to be dismissed and accordingly dismissed.
W.A. No.1521/2017 and W.A. No.1551/2017
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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partners ought not to come under a cloud by the orders made by the Department under RR Act. Therefore, the view taken in
both the writ petitions, that the petitioners have made out a case for granting the prayers, is tenable and warranted in the facts and circumstances of this case.
Hence, we confirm the judgments in W.P.(C)
Nos.5783/2014 and 32715/2014 and accordingly dismiss W.A. Nos. 1521/2017 and 1551/2017.
C.M. Appln. No.20/2016 in R.S.A. No.21/2016
1 (2005) 3 SCC 752
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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(NCT of Delhi) v. Ahmed Jaan2 ; State of Kerala v. Kunju3 , and John K P
v. Mani Varkey4 are relied on by the appellant to convince this Court that a case is made out and particularly in the facts and circumstances of this case that the appellant is entitled for condonation of delay.
24.1 We will, if necessary, advert to the decisions on which the appellant is placing reliance in support of its case for condoning the delay. Let us first examine the reasons stated by the appellant as sufficient cause for condoning the abnormal delay.
“2. The above appeal is filed against the judgment and decree in A.S. No.153/2004 of the II Additional District Court, Kollam dated 10.09.2009 in O.S. No.35/1999 of Munsiff Court, Kollam. The judgment in the above case was pronounced on 10.09.2009. The application for certified copy was filed on 16.09.2009. The judgment was ready on 04.11.2009 and date notified to receive the copy was on 07.11.2009. The copy was delivered on 07.11.2009. The appeal ought
2 (2008) 14 SCC 582
3 2005 (4) KLT 611
4 2014 (4) KHC 36
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to have been filed on 07.02.2010. There is a delay of 2197 days in filing the appeal. The delay is neither willful nor deliberate.
24.2 The affidavit and the material allegations refer to the happenings up to the receipt of the certified copy of the judgment and decree on 07.11.2009. Thereafter, the affidavit refers to forwarding the certified copy to the District Collector on 28.11.2009. The affidavit does not refer to any of the details
with sufficient certainty and at least with reasonable
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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probability that the reason for the delay is on account of any of the specific circumstance stated in the said paragraphs. In other words, general and very casual statements are made for condoning the abnormal delay of 2197 days. A mere perusal of the affidavit is sufficient and would not encourage this Court to show indulgence in favour of the appellant for condoning the delay and revive the cause which has attained finality several years before the filing of the appeal. It is matter of record that the appeal is filed on 16.12.2015. The appellant, to be fair and i.e., serious in working out the remedies, ought to state what happened between 2009 and 2015. The minor partners on the other hand have been referring to and relying on the judgment of the Civil Court for removing the cloud fastened on the property by way of an attachment by the Revenue. The appellant, if is really aggrieved by the adjudication, ought to
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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have moved in the matter at the earliest. In the case on hand, on the contrary, the appellant did not move in the matter within reasonable time or when it was brought to the notice of the appellant that the judgment is one of the documents on which the minor partners are relying on for exonerating their liability for the tax liabilities of the Firm. The appellant did not file appeal in this Court. Added to the above, the appellant has issued Ext.P4 accepting the judgment and initiated consequential steps as directed by the said judgment. Ext.P4 is not even adverted to in the affidavit, but by ignoring what the appellant has accepted, the present appeal is filed only as a ground to resist the claim of minor partners in the connected or accompanying matters. Having appreciated the circumstances happening from 1999 till 2009 and from 2009-2015 we are of the view that no sufficient cause, much less cause is shown for
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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condoning the delay. The Court is not persuaded to condone the delay.
Accordingly, the application is dismissed. Consequently
second appeal is also dismissed. No order as to Costs.
Sd/-
S.V.BHATTI
JUDGE
Sd/BECHU KURIAN THOMAS JUDGE
js/jjj
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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WA NO.1521/2017
APPENDIX
RESPONDENT'S ANNEXURES
R1(A) TRUE COPY OF THE LETTER DATED 24.04.2014 ISSUED BY THE OFFICE OF THE ASST.COMMISSIONER COMMERCIAL TAXES (ASSESSMENT)
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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R.S.A. NO.21/2016
| APPENDIX | |
|---|---|
| RESPONDENT ANNEXURES |
|
| R1 | TRUE COPY OF THE COMMUNICATION DATED 14.08.2012 ISSUED BY THE REVENUE RECOVERY TAHSILDAR, KOLLAM |
| A1 | TRUE PHOTOCOPY OF ORDER NO.R8-23158/00 DATED 05.11.2012 OF THE DISTRICT COLLECTOR, KOLLAM |
| R1(A) | TRUE COPY OF THE JUDGMENT DATED 10.09.2009 IN A.S. 153 OF 2004 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE KOLLAM |
| R1(B) | TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN W.P.C NO.5783 OF 2014 |
| R1(C) | TRUE COPY OF THE COMMON JUDGMENT IN W.P.C.19555 OF 2009, W.P.C.2029 OF 2009 AND W.P.C.23496 OF 2008 DATED 19.3.2012 |
| R1(D) | TRUE COPY OF THE EXTRACT OF THE PARTNERSHIP ISSUED BY THE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM |
| R1(E) | TRUE COPY OF THE JUDGMENT IN W.P.C. NO.32715 OF 2014 DATED 20.09.2016 |
| A2 | TRUE PHOTOCOPY OF THE COMMUNICATION DATED 19.12.2012 OF THE TAHSILDAR (REVENUE RECOVERY), KOLLAM TO THE VILLAGE OFFICER, MUNDAKKAL |
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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W.A. NO.1536/2017
APPENDIX
| RESPONDENT ANNEXURES |
|
|---|---|
| R2(A) | TRUE COPY OF THE E-AUCTION NOTICE DATED 27.07.2018 ISSUED BY THE CANARA BANK |
| R2(B) | TRUE COPY OF THE SALE CERTIFICATE DATED 21.09.2018 ISSUED BY THE CANARA BANK |
| R1 | COPY OF ASSESSMENT ORDER ISSUED BY THE INCOME TAX OFFICER, CENTRAL CIRCLE, TRIVANDRUM FOR THE YEAR 1980-81 |
| R1(A) | COPY OF ASSESSMENT ORDER ISSUED BY THE DY.COMMISSIONER OF INCOME TAX (ASSMNT), SPECIAL RANGE, TRIVANDRUM FOR THE YEAR 1989-90 |
| R1(B) | COPY OF JUDGMENT IN OP NO.4179/2002 OF THIS HON'BLE COURT |
W.A. Nos.1521, 1536 & 1551/2017 & RSA No.21/2016
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WA 1551/2017
APPENDIX RESPONDENT'S ANNEXURES R1(A) TRUE COPY OF THE LETTER DATED 24.04.2014 ISSUED BY THE OFFICE OF THE ASST. COMMISSIONER COMMERCIAL TAXES (ASSESSMENT) R1 TRUE COPY OF THE CERTIFIED COPY OF THE EXTRACT OF PARTNERSHIP MAINTAINED AT THE OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, KERALA AND BY THE REGISTRAR OF FIRMS
2 issues framed by the court
Could firm sales tax arrears be recovered from persons admitted only to partnership benefits and excluded during minority for failure to give notice under Section 30(5)?
Had the State shown sufficient cause to condone the 2197-day delay in filing the regular second appeal?
Colour shows how this judgement treated each authority
W.P.(C) No.19555/2009Explained¶253
W.A. No.481/2013Relied on¶208
O.P. No.4179/2002Relied on¶249
State of Nagaland v. Lipok A OReferred¶270
(2005) 3 SCC 752 · Who else cites this
State (NCT of Delhi) v. Ahmed JaanReferred¶274
(2008) 14 SCC 582 · Who else cites this
State of Kerala v. KunjuReferred¶274
2005 (4) KLT 611
John K P v. Mani VarkeyReferred¶274
2014 (4) KHC 36
2 provisions across 2 enactments
STATE OF KERALA
THE DISTRICT COLLECTOR
REVENUE RECOVERY TAHSILDAR
LAXMI VASANTH
J.RAJMOHAN PILLAI
JOSEPH LISTON
S.V.BHATTI
BECHU KURIAN THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
