Jacob J. v. The Commercial Tax Officer Cherthala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 WP(C) NO. 23185 OF 2015** ## **PETITIONER/S:** JACOB J., AGED 53 YEARS PROPRIETOR, M/S.PANJIKKARAN TYRES, CHERTHALA, ALAPPUZHA-688 524. BY ADV SRI.A.KRISHNAN ## **RESPONDENT/S:** 1 THE COMMERCIAL TAX OFFICER CHERTHALA, ALAPPUZHA-688 524. 2 DEPUTY COMMISSIONER APPEALS COMMERICAL TAXES, BAPPUJI NAGAR, ASRAAMAM, KOLLAM-691 002. 3 DEPUTY TAHSILDAR RR CHERTHALA, ALAPPUZHA-688 524. 4 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, TRIVANDRUM-695 001. ## **OTHER PRESENT:** SRI. V.K. SHAMSUDHEEN -SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** ## **JUDGMENT** The above writ petition is filed by the petitioner seeking to direct respondents 3 and 4 to take immediate actions to refund an amount of Rs.54,394/- realized by the third respondent from the petitioner towards collection charges, as per Exts.P5 and P5(a). 2. The petitioner, engaged in the business of tyre and allied products, was issued with Exts.P1, P1(a), P1(b) & P1(c) assessment orders dated 11.03.2014 by the first respondent for the assessment years, 2009-10, 2010-11, 2011-12 and 2012-13 respectively. Against Exts.P1, P1(a), P1(b) & P1(c) assessment orders, the petitioner filed statutory appeals before the second respondent along with petitions for interim stay, pursuant to which, interim stay, as per Ext.P2 common interim order dated 11.07.2023, was granted on condition that the petitioner remits WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** 30% of the total demand under Ext.P1 series assessment orders. Since the petitioner could not comply with Ext.P2 order, the third respondent initiated revenue recovery proceedings as per Exts.P3 & P3(a) demand notices. Thereafter, challenging Exts.P2, P3 & P3(a), the petitioner had filed WP(C) No.30262 of 2014 and this Court, by Ext.P4 judgment dated 14.11.2014, directed the petitioner to pay the liability under Ext.P2 common order in two equal instalments. In compliance of Ext.P4 judgment, the petitioner remitted the amount before the third respondent, Deputy Tahsildar (RR). The grievance of the petitioner is that while remitting the amount as above, the third respondent collected collection charges totaling to an amount of Rs. 83,288/-. Aggrieved by this, the petitioner has approached this Court. 3. Heard the learned counsel for the petitioner and the learned Senior Government WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** Pleader. 4. The learned counsel for the petitioner submits that the action of the third respondent, collecting collection charges @ 7.5% from the petitioner is grossly bad and unsustainable. The learned counsel for the petitioner, though admitted that the said issue is covered by the judgment of this Court in **State of Kerala & others** v. **Shibu Kumar P.K. & another** [2016:KER:3756], sought for the indulgence of this Court to reduce collection charges to 1% since the conditional stay order was passed by none other than the second respondent appellate authority and the amount was remitted on the basis of the judgment of this Court. 5. _Per contra,_ the learned Senior Government Pleader submits that pursuant to the judgment of this Court, the petitioner remitted the amount by way of two instalments to the third respondent – the Deputy Tahsildar (RR), Cherthala. Since the WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** amount due was collected by the Deputy Tahsildar (RR), Cherthala, the collection charges collected from the petitioner is as per law and hence, the petitioner is not entitled to get any refund of the amount already collected. 6. It is an admitted fact that the petitioner could not comply with Ext.P2 conditional order passed by the second respondent, which resulted in initiation of revenue recovery proceedings as per Exts.P3 & P3(a). It was challenging Ext.P2 conditional order and Exts.P3 & P3(a) demand notices that the petitioner had approached this Court with WP(C) No.30262 of 2014, pursuant to which, the petitioner remitted the amount due to the third respondent – the Deputy Tahsildar (RR), Cherthala. 7. Rule 5 of the Revenue Recovery Rules, 1968, reads thus; “5. (1) Collection charges at the rate of 5 percent of the arrears to be collected under the WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** provisions of the Act on behalf of any institution notified under Section 71 or collected on behalf of any institution under Section 68 when the arrears does not exceed Rupees Five Lakhs and at the rate of 7.5% when the arrears exceed Rupees Five Lakhs shall be realised from the defaulters and accounted as arrears to such institutions. (2) The collection charges shall be deducted from the amount recovered and the balance alone shall be payable to the institution. (3) Institutions except Government Departments accepting defaulted payments directly from the defaulter after initiating Revenue Recovery Proceedings under the Kerala Revenue Recovery Act, 1968 (15 of 1968) and filing the certificate by the District Collector under sub-section (3) of Section 69 of the said Act shall be liable to pay 1% of the amount so collected towards service charge for the initiation of Revenue Recovery Proceedings against the defaulter and to intimate the fact of such acceptance to the District Collector concerned at once. On a reading of the above provisions, it is clear that if revenue recovery proceedings are initiated and the amounts due are collected by the revenue authorities under the revenue recovery proceedings, the authorities are entitled to collect collection charges as per Rule 5(1) of the Revenue Recovery Rules, 1968. 8. Here is a case, where it is admitted that the entire amount was paid by the petitioner WP(C) NO. 23185 OF 2015 **==> picture [31 x 8] intentionally omitted <==** directly to the third respondent – the Deputy Tahsildar (RR). Therefore, the amount collected by the third respondent towards collection charges is as contemplated under Rule 5(1) of the Kerala Revenue Recovery Rules, 1968. This Court, in **State of Kerala** ( _supra_ ), has considered the very same issue and held that if the amount is recovered by revenue recovery proceedings, it is open for the revenue authorities to collect collection charges. Therefore, following the judgment in **State of Kerala** ( _supra_ ), I am of the view that the writ petition is only to be dismissed. Accordingly, the writ petition is dismissed. ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** bka/- WP(C) NO. 23185 OF 2015 ..8.. ## **APPENDIX OF WP(C) 23185/2015** PETITIONER EXHIBITS EXT.P1- TRUE COPY OF ASSESSMENT ORDER PASSED BY 1ST RESPONDENT DATED 11.03.2014 FOR A.Y.2009-10 EXT.P1(A)-TRUE COPY OF ASSESSMENT ORDER PASSED BY 1ST RESPONDENT DATED 11.03.2014 FOR A.Y.2010-11 EXT.P1(B)-TRUE COPY OF ASSESSMENT ORDER PASSED BY 1ST RESPONDENT DATED 11.03.2014 FOR A.Y.2011-12 EXT.P1(C)-TRUE COPY OF ASSESSMENT ORDER PASSED BY 1ST RESPONDENT DATED 11.03.2014 FOR A.Y.2012-13 EXT.P2- TRUE COPY OF THE COMMON STAY ORDER DATED 11.07.2014 IN EXT.P3 APPEAL EXT.P3- TRUE COPY OF THE DEMAND NOTICE DATED 17.10.2014, UNDER R/R ACT EXT.P3(A)- TRUE COPY OF SALE NOTICE DATED 20.10.14. EXT.P4- TRUE COPY OF JUDGMENT IN DATED 14.11.2014 WP(C) NO.30262 OF 2014 (G) EXT.P5- TRUE COPY OF THE RECEIPT DATED 04.12.2014. EXT.P5(A)- TRUE COPY OF RECEIPT DATED 04.12.2014.