Wp(C)/1046/2012 Of U.v.noushad v. The Agricultural Income Tax And Commercial Tax Officer And Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH DAY OF JANUARY 2012/23RD POUSHA 1933 WPC.No. 1046 of 2012 (E) ------------------------------- PETITIONER(S): ------------------- U.V.NOUSHAD SON AND LEGAL HEIR OF LATE P MOIDEEN PROPRIETOR OF AL-AMEEN WOOD INDUSTRIES, KANHANGAD RESIDING AT U.V. HOUSE, AJANUR, KANHANGAD KASARGOD DISTRICT. BY ADVS.SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): -------------------- 1. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER HOSDURG, KASARGOD DISTRICT - 671 121. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 005. 3. KERALA AGRICULTURAL INCOME TAX & SALES TAX APPEALATE TRIBUNAL, ADDITIONAL BENCH, THIRUVANANTHAPURAM- 695 005. 4. SPECIAL DEPUTY TAHSILDAR, HOSDURG-671 315. BY S.R.GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN svs THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: W.P.(C). NO. 1046/2012 APPENDIX PETITIONER'S EXHIBITS: P1:COPY OF THE PENALTY ORDER PASSED BY 1ST RESPONDENT DATED 13/12/2006. P2:COPY OF THE TRIBUNAL ORDER DATED 11/01/2011. P3:COPY OF THE REVISIONAL ORDER DATED 17/03/2008. P4:COPY OF THE INTERIM ORDER IN WPC. NO.11012/2011DATED 12/04/2011.DATED 12/04/2011. P5:COPY OF THE RESTORATION PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/05/2011.BEFORE THE 2ND RESPONDENT DATED 14/05/2011. P6:COPY OF THE LETTER DATED 14/06/2011. P7:COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 07/10/2011.DATED 07/10/2011. P8:COPY OF THE SALE NOTICE ISSUED BY 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ svs P.A. TO JUDGE. ANTONY DOMINIC, J. ```````````````````````````````````````````````````````````W.P.(C) No.1046 of 2012 ``````````````````````````````````````````````````````````` Dated this the 13[th] day of January, 2012 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Ext.P1 penalty order was passed against thepetitioner's deceased father mainly on the ground ofunaccounted purchase and misuse of form-18. Revisionfiled by the petitioner was rejected by Ext.P3 order. Secondrevision filed was also rejected for technical reasons. At thatstage, the petitioner filed a writ petition before this court aswrit petition(c).No.11012/2011. In the said writ petition, thiscourt passed Ext.P4 interim order leaving it open to thepetitioner to seek restoration of the second revisiondismissed for default for non-payment of additional courtfee. According to the petitioner in pursuance to the directionin Ext.P4 he filed Ext.P5 application for restoration andsubsequently the writ petition was also disposed of takingnote of the same. Petitioner states that subsequently theoffice of the Commissioner transferred Ext.P5 application to the 3[rd] respondent and on its receipt the 3[rd] respondent issuedExt.P7 to the petitioner's representative. Thus the restorationapplication filed by the petitioner is pending consideration ofthe Tribunal and while so recovery action has been initiatedand by Ext.P8 he is informed that immovable and immovableproperty inherited by the petitioner is scheduled to be sold on2[nd] February, 2012. It is in these circumstances the writpetition has been filed. the 3[rd] respondent and on its receipt the 3[rd] respondent issuedExt.P7 to the petitioner's representative. Thus the restorationapplication filed by the petitioner is pending consideration ofthe Tribunal and while so recovery action has been initiatedand by Ext.P8 he is informed that immovable and immovableproperty inherited by the petitioner is scheduled to be sold on2[nd] February, 2012. It is in these circumstances the writpetition has been filed. 2. The main contention raised by the counsel for thepetitioner is that in Ext.P2 order passed by the Tribunal it hasalready been found that the sales which are mentioned inExt.P1 were made with fabricated documents by somebodyelse and there was no misuse of form 18. In any case theseare matters for consideration of the Tribunal as and whenExt.P5 application for restoration is considered and at thisstage it is premature for the petitioner to raise this contentionbefore this court. However, having regard to the fact that therestoration application has been field by the petitioner W.P.(C) No.1046/2012 pursuant to Ext.P4 order passed by this court which has nowreceived by the Tribunal as per Exts.P6 and P7, I aminclined to think that the coercive action now initiated byExt.P8 stand suspected until orders are passed by theTribunal 3. In that view I dispose of this writ petition directing thatthe 3[rd] respondent shall consider Ext.P5 application, withnotice to the petitioner as expeditiously as possible and at anyrate within 3 months of receipt of a copy of the judgmentalong with a copy of the writ petition. It is directed that in themeanwhile, the sale scheduled as per Ext.P8 shall be kept inabeyance. Petitioner to produce a copy of the judgment along witha copy of the writ petition before respondents 3 and 4 forcompliance. vi/ (ANTONY DOMINIC, JUDGE)