Deputy Commissioner of Commercial Taxes vs K.J. Kurian

Mr. K. Harilal, J. - The petitioner is the Deputy Commissioner of Commercial Taxes, Ernakulam, and the second respondent is a registered dealer as well as an assessee on the files of the Assistant Commissioner of Commercial Taxes (Assessment), Special Circle, Ernakulam. The first respondent is the decree holder in LAR No. 70/2006 on the files of the Sub Court, Muvattupuzha. The said LAR was filed for enhancement of compensation and decreed in favour of the claimant/decree holder. Subsequently, the decree holder filed E.P.No.81/2012 for realisation of the decree amount. Thereafter, they filed E.A. No. 205/2012 in E.P.No.81/2012 for attachment of an amount of ?15,52,377/- which was kept by the petitioner for paying to the Government as sales tax and the court below allowed E.A. No. 205/2012 by Ext.P2 order.

According to the petitioner, the impugned order is passed in violation of Order 21, Rule 46 of the Code of Civil Procedure and Section 49A of the Kerala General Sales Tax Act. On the above premises, this Original Petition (Civil) is filed to quash Ext.P2 order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

Heard the learned Government Pleader appearing for the petitioner and the learned counsel appearing for the respondents.

The sum and substance of the arguments advanced by the learned Government Pleader is that the impugned order is passed in violation of Order 21, Rule 46 of the Code of Civil Procedure and Section 49A of the Kerala General Sales Tax Act. In support of the arguments, the learned Government Pleader cited an order passed by this Court in WA. No. 388/2014 and WP(C) No. 21626/2013 dated 13.3.2014 and produced an Official Memorandum dated 24.6.2014 issued by this Court to all the Subordinate Courts under the High Court of Kerala.

Section 49A of the Kerala General Sales Tax Act and Section 79A of the Kerala Value Added Tax Act are in pari materia and they read as follows: Section 49A of the Kerala General Sales Tax Act, 1963 - Bar against attachment in certain cases-Notwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any order attaching any amount from any person out of the tax collected by such person under the Act and kept with him before it became due to Government. Section 79A of the Kerala Value Added Tax Act, 2003 - Bar against attachment in certain cases - Notwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any order attaching any amount from any person, out of the tax collected by such person under the Act and kept with him before it became due to Government.

Obviously, it is discernible from the above provisions that the Court or any Authority shall not pass any order attaching any amount from any person, out of tax collected by such person under the Act and kept with him. Thus a statutory bar is created against issuance of garnishee orders.

The Division Bench of this Court in WP(C) No. 21626/2013, held that Section 49A of the Kerala General Sales Tax Act, 1963 and Section 79A of the Kerala Value Added Tax Act, 2003 created a statutory bar against attachment of tax collected and kept by any person before it became due to the Government and directed the Registry of this Court to issue instructive communications in the form of circulars or otherwise, as may be found appropriate to alert the Civil Courts and Judicial Officers manning those Courts about Section 49A of the Kerala General Sales Tax Act and Section 79 A of the Kerala Value Added Tax Act.

In compliance with the said direction the Registry of this Court has issued an Official Memorandum dated 24.6.2014 making the said proposition as a binding instruction on all the Subordinate Courts. As per the said Official Memorandum all Subordinate Judicial Officers are instructed to take note of the bar against attachments specified in Section 49A of the Kerala General Sales Tax Act and Section 79A of the Kerala Value Added Tax Act, while issuing garnishee orders against dealers collecting tax either under the Kerala General Sales Tax Act or under the Kerala Value Added Tax Act, in furtherance of attachments imposed against the State, either during the course of execution of decrees or otherwise.

Going by the order cited by the learned Government Pleader, it is seen that the issue involved in this Original Petition now stands covered by the aforesaid order wherein this Court has elaborately considered the scope and extent of Section 49A of the Kerala General Sales Tax Act and Section 79A of the Kerala Value Added Tax Act and unequivocally held that the amount collected as tax cannot be attached in execution of the decree or otherwise in view of the bar imposed under Section 49A of the Kerala General Sales Tax Act and Section 79A of the Kerala Value Added Tax Act.

To sum up, the impugned order is passed in violation of Section 49A of the Kerala General Sales Tax Act and Section 79A of the Kerala Value Added Tax Act. In the above view of the matter, Ext.P2 is quashed and this Original Petition is allowed.