A.A. Mary Palathingal House v. Tahsildar, Mukundapuram Taluk and Commercial Tax Officer, Irinjalakuda

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944** ## **WP(C) NO. 15890 OF 2016** ## **PETITIONER:** A.A.MARY PALATHINGAL HOUSE,KUTTIKKAD.P.O, THRISSUR DISTRICT,PIN-680724. BY ADV SRI.BABU CHERUKARA ## **RESPONDENTS:** - 1 TAHSILDAR, MUKUNDAPURAM TALUK PIN-680121. - 2 COMMERCIAL TAX OFFICER IRINJALAKUDA,PIN-680121. BY GOVERNMENT PLEADER SMT JASMINE.M.M. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.15890 of 2016 ..2.. ## **JUDGMENT C.R.** The petitioner has filed this writ petition with the following main prayer:- - (a)Call for the records leading to Ext.P3 sale notice and on issuing a writ of certiorari or any other appropriate writ or order to quash the same; 2. The brief facts of the case are as follows:- The Petitioner is a housewife aged 85 years. Her husband late P.K.Jacob was conducting a small scale industrial unit named M/s.Palm Groove Plastics, at Kattoor in Mukundapuram Taluk. Due to financial crisis, the industry went in loss and the industry was closed down. Late P.K.Jacob was an assessee on the rolls of the second respondent- Commercial Tax Officer, Irinjalakuda. The sales tax liability totalling to an amount of Rs.2,96,303/- for the assessment years 1994-95 and 1995-96 was assessed against late P.K.Jacob. The petitioner herein was never related with the industry or its liability. The petitioner also did not obtain any assets from the husband. The business of M/s.Palm Groove Plastics, Kattoor was a proprietary concern run W.P.(C)No.15890 of 2016 ..3.. by late Mr.P.K.Jacob. On receipt of the demand from the second respondent for sales tax due, the petitioner under the Right to Information Act obtained copy of the application of sales tax registration of M/s.Palm Groove Plastics given by late P.K.Jacob. The husband of the petitioner died on 11.9.1997. The petitioner had purchased with her hard-earned money, 2.000 cents(0.81 ares) of property in Sy.No.452/2 of Kattoor Village as per Sale deed No.1261/1989 of SRO, Kattoor. The first respondent had issued Ext.P3 notice under Section 49(2) of the Kerala Revenue Recovery Act,1968 for sale of petitioner's property for the liability of M/s.Palm Groove Plastics, Kattoor. The first respondent has included the name of the petitioner as the defaulter and included above property in auction. The petitioner is not liable to pay any amount to the respondents for the liability of her husband since she did not inherit any assets of her husband or the industry or she has never participated in any function of the day-to-day affairs of the proprietary concern. Aggrieved by Ext.P3 sale notice, the petitioner has approached this Court with the above writ petition. 3. The first respondent has filed counter affidavit W.P.(C)No.15890 of 2016 ..4.. contending that late P.K.Jacob was an assessee on the rolls of the second respondent's office bearing KGST No.25162160 and CST No.25167160 dated 17.03.1991. He was engaged in purchasing, manufacturing and sale of plastic goods. The assessing authority issued summons to the dealer to produce the books of accounts for the years 1994-95 and 1995-96. In response to the aforesaid summons, the petitioner, who is the wife and legal heir of late P.K.Jacob, filed a reply requesting to grant 20 days time to produce the books of accounts for the said years. She further reported that her husband, proprietor of the firm, died on 11.9.1997. The petitioner, who is the wife and legal heir of late P.K.Jacob neither produced the books of accounts nor appeared before the assessing authority. Hence, the assessing authority issued a pre-assessment notice to the petitioner in respect of the assessment years 1994-95 and 1995-96 and she was also granted enough time to file objection to the proposed assessment and an opportunity of being heard was also granted. But the petitioner did not respond to the pre-assessment notice. Hence the second respondent completed the final assessment for the W.P.(C)No.15890 of 2016 ..5.. assessment years 1994-95 and 1995-96 on 14.3.2000 amounting to Rs.2,96,303/-. Since the petitioner has not remitted the amount assessed towards tax, the second respondent forwarded the requisition to the first respondent for initiating revenue recovery steps against the petitioner for realisation of the amount due. The property of the petitioner has been attached and proceeded against as per law. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The prime question for consideration is as to whether the petitioner-the wife and legal heir of late P.K.Jacob, who was an assessee under the sales tax, on the rolls of the second respondent, is liable to pay the amount due to the second respondent. The petitioner is the owner of two cents of property in Sy.No.452/2 of Kattoor Village purchased by her in the year 1989, as per Ext.P2 sale deed. Ext.P2 reveals that the said property belongs to the petitioner and it was purchased by her after paying Rs.1000/- towards sale consideration from one Velayudhankutty, S/o.Kunjiraman. W.P.(C)No.15890 of 2016 ..6.. 6. As far as the liability of the legal heirs is concerned, the provision in Section 50 of the Code of Civil Procedure, 1908 which is the general law of the land reads thus: _“_ _**50.Legal representative** .--(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased._ _(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decreeholder, compel such legal representative to produce such accounts as it thinks fit.”_ Therefore, if the legal heir has acquired any property of the deceased person, he shall be liable only to the extent of the property of the deceased which has come to his hands. The provision similar to the provision in the Code of Civil Procedure regarding the liability of legal heirs, has been incorporated in the Kerala General Sales Tax Act,1963 (for short 'the KGST Act')which was a subsequent legislation and the applicable law during the relevant period. W.P.(C)No.15890 of 2016 ..7.. ## 7. Section 20 of the KGST Act reads as follows:- **“20.Assessment of legal representatives:-** Where a dealer dies, his executor, administrator, or other legal representative shall be deemed to be the dealer for the purposes of this Act, and the provisions of this Act shall apply to him in respect of the business of said deceased dealer, provided that, in respect of any tax, fee or other amount assessed as payable by any such dealer or levied on him or any tax, fee or other amount which would have been payable by him under this Act if he had not died, the executor, administrator or other legal representative shall be liable only to the extent of the assets of the deceased in his hands.” 8. The provision is very clear and it is well established that the legal heir of a deceased person is liable for the dues of the deceased only to the extent of the assets of the deceased, devolving on him/her as the case may be. It is an admitted fact that the property now put for sale for recovery of the amount due, is the property of the petitioner, which is selfacquired. There is no case otherwise for the respondents in the counter affidavit also. The respondents pointed out that since the petitioner is the wife and legal heir of the assessee defaulter, the respondents are entitled to proceed against the property of the petitioner herein. It is the further case of the respondents that notice was issued to the petitioner since she was deemed to be the dealer for the purpose of the KGST Act and the provisions of W.P.(C)No.15890 of 2016 ..8.. the KGST Act shall apply to her in respect of the business of the said deceased dealer. The argument that the petitioner shall be deemed to be the dealer for the purpose of the KGST Act is not controverted. But, in order to proceed against the property for recovery of the amount due, the respondents are liable to proceed only to the extent of the assets of the deceased in her hands. 9. It is clear from the averments and the contentions raised by parties on both sides that the defaulter assessee does not own any other property. Admittedly, the petitioner, who is wife and legal heir, is liable for the dues of the deceased, but only to the extent of the assets of the deceased devolving on her. Since, the property now proceeded against for sale is the self acquired property of the petitioner in her name and not an inherited property, the respondents are not legally entitled to proceed against the property of the petitioner, which is the only property held by her. In the decision reported in **Hameed** v. **Addl.Sales Tax Officer** [1995(1) KLT 504], this Court held that liability of legal heir for dues of the deceased extends only to assets of deceased devolving upon him. There is no prohibition from recovering dues W.P.(C)No.15890 of 2016 ..9.. from the legal heirs of the deceased to the extent they have acquired property of deceased assessee. ## 10. In **Sreejith v.Intelligence officer (2006(1) KLT** **260),** it was held that on the death of a dealer, the successor can be treated as 'dealer' under the Act. It was further held as follows:- _“..................The death of the assessee does not lead to end the proceedings initiated against him. Even after the death of the dealer, it is the duty of the assessing officer to complete the assessment or any other proceeding pending against the dealer as on the date of his death and by virtue of S.20, the assessing officer or any other authority under the statue is bound to issue notice to hear legal heirs and complete adjudication before any demand is raised against any legal representative. However, if any of the legal representative to which notice is issued, does not hold any asset of the deceased dealer, then, he or she can ignore the notice because consequential orders cannot be enforced against them by virtue of operation of the latter part of S.20 of the Act............”_ Though the petitioner can be deemed to be the dealer for the purpose of the KGST Act and notice was issued to her, since she has not acquired any property of her deceased husband as legal heir, the respondents are not legally entitled to proceed against the property of the petitioner, which is a self acquired property for recovery of the amount due. Therefore, if the petitioner has acquired any property of late P.K.Jacob, the respondents are free W.P.(C)No.15890 of 2016 **==> picture [22 x 6] intentionally omitted <==** to proceed against. 11. In the above view of the matter, I am of the considered opinion that Ext.P3 sale notice has to be set aside. In the result, this writ petition is allowed as follows:- Ext.P3 sale notice is set aside. The respondents are free to proceed against the petitioner or any other legal heir of late.P.K.Jacob, to the extent of the assets of the deceased in their hands, in accordance with law. sd/- **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/ W.P.(C)No.15890 of 2016 ..11.. ## **APPENDIX OF WP(C) 15890/2016** PETITIONER EXHIBITS P1 TRUE COPY OF APPLICATION OF SALE TAX REGISTRATION OF THE INDUSTRY GIVEN BY LATE P.K.JACOB BEFORE THE SALES TAX OFFICER,IRINJALAKUDA DATED 6-3-1991 P2 TRUE COPY OF THE DOCUMENT NO.1261/1989 OF KATTOOR SUB REGISTRY DATED 25-9-1989 P3 TRUE COPY OF THE AUCTION SALE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER NO.D1 13770/02.