M.K. Lakshmi vs State of Kerala and Others

Antony Dominic, J.—One Sri S. Suresh Babu, son of the petitioner was the proprietor of a small-scale Industrial unit by name "Solid Rubbers" at Bharathipuram in Yeroor Village of Pathanapuram Taluk. He was an asses-see under the Kerala General Sales Tax Act, 1963. The assessment for the years 1992-93 and 1993-94 was completed and Rs. 12,32,220 was levied as the tax due in addition to the surcharge of Rs. 1,21,322 was also levied. It appears that he filed an appeal and during the pendency of the appeal in the revenue recovery proceedings initiated against one acre and seven cents of land belonging to the defaulter was attached on January 19, 1997. The recovery proceedings were continued and the property was brought for sale on October 10, 2000. There was no bidders and therefore, Government themselves purchased the land as bough-in-land for Re. 1. Subsequently, the sale was confirmed by exhibit P1 order dated June 2, 2001.

Still later, on November 27, 2001 the appeal filed by the assessee was rejected by the appellate authority. However, in STA 207/2002, the Tribunal passed order dated November 8, 2002, remanding the matter to the first appellate authority. Accordingly the first appellate authority passed order dated April 1, 2004, directing the assessing officer to pass revised order.

Accordingly, on May 26, 2004, fresh order of assessment was passed with a total liability of Rs. 5,16,308 towards tax and surcharge. In the meantime, on February 9, 2004, Sri S. Suresh Babu expired and the recovery proceedings were continued against the sureties. Thereupon, the sureties filed appeals as STA Nos. 55 and 56 of 2005. By order dated February 2, 2007, appeals were disposed of modifying the assessment order and fixing the total liability of the assessee at Rs. 2,23,772. Thereafter, after adjusting the amount available to the credit of the assessee towards the exemption granted, exhibit P6 and P6(a) notices of demand were issued on March 16, 2005, calling upon the sureties to pay Rs. 3,850 towards the balance tax and the surcharge due. On receipt of the notice, the amount demanded was paid on March 16, 2005 itself and exhibit P7 is the receipt.

Thereafter, the wife of the deceased, the fifth respondent, submitted application dated April 24, 2007 requesting for reconveyance of the property sold on October 10, 2000. That was rejected by exhibit P9 order passed by the first respondent. Further representations were made and finally by exhibit P10 order dated March 30, 2009, the petitioner was informed that her application was rejected on account of the fact that in terms of the Government Order dated March 22, 1996, the applications for re-conveyance should be made within two years of confirmation of the sale.

It is on receipt of exhibit P10, the writ petition has been filed by the petitioner seeking to quash exhibit P10 and to direct the respondents to reconvey one acre and seven cents of land comprised in Survey No. 822/1 of Thinkalkarikam Village of Pathanapuram Taluk to the legal heirs of the deceased-assessee. The fifth respondent has also filed a counter-affidavit confirming that she is the widow of the deceased-assessee and that in her wedlock with the deceased, she has given birth to Malavika Suresh, her daughter.

In the counter-affidavit filed by the official respondents, they have taken the position that the petitioner is not entitled to the relief prayed for, for the reason that application for reconveyance was not made by the petitioner within two years of confirmation of the sale, which according to the respondents is a mandatory condition to be complied with.

I heard the learned counsel for the petitioner, the learned Government Pleader appearing for official respondents and also the learned counsel appearing for the fifth respondent.

As already seen, the property of the deceased was attached on January 19, 1997 and was sold on October 10, 2000. The sale was confirmed by exhibit P1 order dated June 2, 2001. However, during the period when all these developments have taken place, the first appeal filed by the deceased against the order of assessment was pending before the appellate authority and on rejection of that appeal, further appeal was filed to the Tribunal and the Tribunal set aside the first appellate authority''s order rejecting the appeal. On remand when the first appellate authority reconsidered the matter and set aside the assessment order and by order dated April 1, 2004 remanded the matter for fresh consideration of the assessing officer himself.

Therefore, once order dated April 1, 2004 was passed, the very basis of the recovery proceedings which led to the attachment of the immovable properties of the deceased, its sale and confirmation disappeared. The proceedings thereafter, culminated in the order dated February 2, 2005 passed by the first appellate authority in STA Nos. 55 and 56 of 2005 whereby the liability was reduced to a total amount of Rs. 2,26,772. It was thereafter by exhibits P6 and P6(a), after giving credit to the eligible amount of exemption, notices of demand were issued asking for remittance of Rs. 3,850 and this amount was remitted by the sureties on March 16, 2005 itself as is seen from exhibit P7.

Therefore, when the basis of the attachment and sale was lost with the order dated April 1, 2004 passed by the first appellate authority and on the basis of exhibits P6 and P6(a), the entire amount due from the assessee was paid, there was no reason for the respondents to have retained the property of the assessee any further. If that be so, the failure of the petitioner or the wife of the assessee in making the application for reconveyance within two years of the confirmation of sale is inconsequential. In such circumstances, since the assessee had no further liability to be discharged, one acre and seven cents of property, which is comprised in Survey No. 822/1 of Thinkalkarikam Village of Pathanapuram Taluk sold on October 10, 2000 and mentioned in exhibit P1 ought to be returned to the legal heirs of the deceased assessee. In that view of the matter, I am unable to sustain exhibit P10 and the order is quashed.

Therefore, the writ petition is disposed of directing respondents two to four to re-convey the property mentioned above to the legal heirs of the deceased-assessee, Sri S. Suresh Babu. This shall be done as expeditiously as possible, at any rate, within four months of receipt of a copy of this judgment. Needless to say that any expenses for completing the procedural formalities in this behalf will be borne by the petitioner or the legal heirs. Writ petition is disposed of as above.