So Relying On Benoy Kurian v. Agricultural Income Tax

CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA,1940 WP(C).No. 34114 of 2018 PETITIONER/S: RESPONDENT/S: W.P.(C). No. 34114 of 2018 4MOHAMMED ASHRAF,S/O.EDAVANAKKAD SAIDU MOHAMMED, EDAVANAKKATTU HOUSE, P.O.METHALA, KADUKKACHODU, KODUNGALOOR TALUK, TRICHUR-680 669. OTHER PRESENT: GP DR. THUSHARA JAMES. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners are the mother and the daughter; thefourth respondent is the husband and father. He is a partner in abusiness, which is an assessee under the Kerala Value Added TaxAct. 2. For the assessment year 2004-2005, the firm with threepartners owed certain arrears of tax. Now, the arrears haveaccumulated to about 2.5 lakhs rupees. To recover them, theDepartment initiated proceedings. And as a part of thoseproceedings, it attached the fourth respondent's share in his W.P.(C). No. 34114 of 2018 ancestral property. 3. The first petitioner wife has strained marital relationship with the fourth respondent. Estranged and pushed out of thematrimonial fold, the first respondent was constrained to fendfor herself and her daughter, dependent on her. Then, she filedOP No.706 of 2013 before the Family Court, Irinjalakuda, for thereturn of property and other valuables from the fourthrespondent. The Family Court allowed the OP as follows: “a) Respondent is directed to return 102½ sovereigns ofgold or its market value at the tune of Rs.22,42,000/-(rounded) and cash of Rs.2,00,000/- to petitioner within 6months from the date of this judgment. b) He is also directed to pay Rs.15,000/- as futuremaintenance to petitioner and to her minor 3 childrenfrom the date of this petition until further orders. c) In case, respondent is not complying with the aboveconditions, petitioner is authorized to recover the amountwith 6% interest per annum from the date of petition tillrealization from respondent and his assets by due processof law.” 4. As the fourth respondent did not comply with the Ext.P4 judgment, the first petitioner filed an execution petition andeventually secured the Ext.P5 sale certificate. In fact, that sale W.P.(C). No. 34114 of 2018 certificate covers the property, which the Department hadalready attached. When, on further enquiries, the wife came toknow about the attachment, she also came to know that theDepartment floated an amnesty scheme for the defaultingdealers. To take advantage of that scheme, she filed, through herdaughter, the Ext.P7 application before the Department. But theDepartment rejected her request. 5. Assailing the Ext.P8 order of rejection, the petitioners,mother and daughter, have filed this writ petition.mother and daughter, have filed this writ petition. 6. Heard the learned counsel for the petitioner and the learnedGovernment Pleader for the respondents. 7. The amnesty scheme allows any aggrieved person toapply under it. The petitioners' counsel, indeed, contends thatthe wife and daughter, too, are the aggrieved persons, for theyhave an interest in the assessee's estate. To elaborate, thelearned counsel has submitted that the fourth respondent hasacted vindictively and with spite. Instead of taking advantage of W.P.(C). No. 34114 of 2018 the amnesty scheme and securing the property, he let go of it. Itwas only to ensure that his wife would get nothing out thedecree she secured: she could not proceed against the property.In other words, he would rather let the government have theproperty than his wife and daughter. The matrimonial discardand animosity are writ large. 8. So relying on Benoy Kurian v. Agricultural Income Tax 7. The amnesty scheme allows any aggrieved person toapply under it. The petitioners' counsel, indeed, contends thatthe wife and daughter, too, are the aggrieved persons, for theyhave an interest in the assessee's estate. To elaborate, thelearned counsel has submitted that the fourth respondent hasacted vindictively and with spite. Instead of taking advantage of W.P.(C). No. 34114 of 2018 the amnesty scheme and securing the property, he let go of it. Itwas only to ensure that his wife would get nothing out thedecree she secured: she could not proceed against the property.In other words, he would rather let the government have theproperty than his wife and daughter. The matrimonial discardand animosity are writ large. 8. So relying on Benoy Kurian v. Agricultural Income Tax Officer[1], the petitioners’ counsel urges this Court to set aside theExt.P8 and direct the Department to reconsider the petitioners'plea for amnesty scheme, so they could pay the reduced amountand save the property. 9. The learned Government Pleader, on the other hand,submits that the scheme is unambiguous: dealers alone can usethe scheme. According to her, the fourth respondent is one ofthe three partners and, so, his properties have been attached. Ifdesirous, he would take advantage of the Circular No.16 of 2016,dated 27.08.2016, the amnesty scheme. 1 1997 (2) KLT 922 W.P.(C). No. 34114 of 2018 10. The learned Government Pleader, then, refers to Benoy Kurian, the judgment the petitioners' counsel relied on. Shesubmits that the extended meaning of ‘aggrieved person’ in thatjudgment stands on its own facts. She stresses that a purchaserstepping into the seller's shoes may answer the description of anaggrieved person—but not these petitioners. 11. Here, the second petitioner daughter, continued the Government Pleader, filed the Ext.P7 representation, rather thanthe first petitioner mother. To elaborate, she contends the wifefiled the matrimonial proceedings and secured a decree and asale certificate. By no stretch of imagination can the daughter betreated 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 theGovernment Pleader's contention that the daughter has no roleto play. She has none, true. But here, the daughter and themother have made a common cause: driven out, both have to W.P.(C). No. 34114 of 2018 fend for themselves and the daughter apparently is a dependent.All along, the mother fought not only to secure her interest butalso to secure her daughter's. In that context, the daughter’sinteraction with the Department—her representations notexcluded—ought to have been taken as those in a representativecapacity. She is, to me, an ostensible agent of her mother, whohas 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 anaggrieved person. And this Court has accepted the purchaser'sstanding. Here, the position cannot be different—ratherstronger, if anything. First , with the sale certificate, the wife hassucceeded to her husband's interest, as if she were a purchaser.Besides that, here the fourth respondent's conduct is apparentthat he deliberately refused to take advantage of the amnestyscheme because the ultimate beneficiary might be his wife anddaughter. W.P.(C). No. 34114 of 2018 14. Under these circumstances, both the petitioners have every right to protect their interest vis-à-vis the property. Andfor that, they wanted to take advantage of the scheme. Here, Ireckon the petitioners have eminently answered the descriptionof “the persons aggrieved.” I, therefore, allow the writ petition. Consequently, I set aside the Ext.P8 and direct the respondent authorities toreconsider the petitioners' application, keeping in view theCircular No.16 of 2018, and pass orders, expeditiously. Sd/- DAMA SESHADRI NAIDU JUDGE das APPENDIX W.P.(C). No. 34114 of 2018 14. Under these circumstances, both the petitioners have every right to protect their interest vis-à-vis the property. Andfor that, they wanted to take advantage of the scheme. Here, Ireckon the petitioners have eminently answered the descriptionof “the persons aggrieved.” I, therefore, allow the writ petition. Consequently, I set aside the Ext.P8 and direct the respondent authorities toreconsider the petitioners' application, keeping in view theCircular No.16 of 2018, and pass orders, expeditiously. Sd/- DAMA SESHADRI NAIDU JUDGE das APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF CERTIFIED ISSUED BY THE 1ST RESPONDENT DATED 30.12.2009. EXHIBIT P2 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 7.12.2010. W.P.(C). No. 34114 of 2018 -9- EXHIBIT P2 ACOPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 23.12.2010.RESPONDENT DATED 23.12.2010. EXHIBIT P2 BCOPY OF NOTICE ISSUED BY THE 2NDRESPONDENT DATED 23.12.2010.2NDRESPONDENT DATED 23.12.2010. EXHIBIT P3COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED 22.11.2014.RESPONDENT DATED 22.11.2014. EXHIBIT P4COPY OF JUDGMENT IN O.P.NO.706/2013 OFTHE FAMILY COURT, IRINJALAKUDA DATED 7.11.2014.THE FAMILY COURT, IRINJALAKUDA DATED 7.11.2014. EXHIBIT P5COPY OF NOTICE SALE CERTIFICATE IN E.P.NO.26/15 ISSUED BY THE FAMILY COURT, IRINJALAKUDA DATED 9.7.2018.E.P.NO.26/15 ISSUED BY THE FAMILY COURT, IRINJALAKUDA DATED 9.7.2018. EXHIBIT P6COPY OF WARRANT ISSUED BY THE FAMILY COURT, IRINJALAKUDA DATED 30.7.2018.COURT, IRINJALAKUDA DATED 30.7.2018. EXHIBIT P6 ACOPY OF ACKNOWLEDGMENT BY COURT AMIN WITH RECEIPT OF THE 1ST PETITIONER DATED 30.6.2018.WITH RECEIPT OF THE 1ST PETITIONER DATED 30.6.2018. EXHIBIT P7COPY OF APPLICATION FILED BY THE 2ND PETITIONER DATED 30.6.2018.PETITIONER DATED 30.6.2018. EXHIBIT P8COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 1.8.2018.RESPONDENT DATED 1.8.2018.