T. Parthasarathy vs Commercial Tax Officer-I, R.R. DT., Secunderabad

Immaneni Panduranga Rao, J.—This writ petition is filed seeking declaration that the proposed auction of the petitioner''s house bearing No. 2-2-647/72/A, situated at Excise Colony, Nallakunta, Hyderabad, under notice dated May 21, 1987, of the respondent is without jurisdiction, illegal and improper.

The admitted facts of the case are that the petitioner was working as Deputy Commercial Tax Officer, Rural, from 1980 onwards. Alleging that during the discharge of his duties, he has temporarily embezzled and misappropriated Government funds; that he was absent unauthorisedly and that he has not handed over charge of the Government records, a disciplinary enquiry was initiated against him. The Enquiry Officer has submitted his report dated July 14, 1982, holding that all the charges are proved. Accepting that enquiry report a second show cause notice was issued to the petitioner calling for explanation as to why he should not be removed from service. In response to that second show cause notice the petitioner submitted that his explanation was not considered. The Government after considering his representation dated March 14, 1983, referred the matter back to the Deputy Commissioner (Commercial Taxes), Hyderabad-II Division for further enquiry into the matter taking into consideration the explanation of the delinquent officer. The Enquiry Officer conducted a fresh enquiry with reference to the relevant records and submitted his report. The Government after examining the further report of the Enquiry Officer with reference to the relevant records issued G.O. Ms. No. 1469 Revenue (SS) Department dated November 14, 1986, after consulting the Andhra Pradesh Public Service Commission and after issuing second show cause notice to the delinquent officer, dismissing him from service.

That order dismissing him from service has become final. Thereafter the Accountant-General, Andhra Pradesh, addressed a letter dated February 12, 1985, to the Commissioner of Commercial Taxes, Hyderabad, bringing to the notice of the Commissioner, Commercial Taxes, Hyderabad, two cases of misappropriation of Government money pertaining to Commercial Taxes Department, including that of the petitioner and requesting the Commissioner of Commercial Taxes to furnish the latest position of recovery of misappropriated amount. After receiving a copy of the said letter addressed by the Accountant-General, the impugned notice dated May 21, 1987, was issued by the Commercial Tax Officer-I, Rangareddy District, Secunderabad, proposing for auction of the petitioner''s house at Excise Colony, Nallakunta, Hyderabad.

The learned counsel for the petitioner challenged the validity of that notice on the ground that quantum of liability is not fixed; that the demand notice was not issued for an ascertained amount and that the Commercial Tax Officer has no jurisdiction to sell the immovable property in order to realise the amount misappropriated by the delinquent officer. He relied upon the letter dated August 24, 1984, issued by the Commercial Tax Officer-I, Rangareddy District, to the petitioner calling upon him to remit the amount of Rs. 33,412.88 which was collected by him towards the taxes due from the dealers and was misappropriated by him. The learned counsel for the petitioner submitted that the notice dated August 24, 1984, was issued prior to the initiation of the disciplinary enquiry and the issuance of G.O. Ms. No. 1469 dated November 14, 1986. It is true that the notice dated August 24, 1984, was issued during the pendency of disciplinary enquiry but the final order passed by the Government in G.O. Ms. No. 1469 dated November 14, 1986, clearly mentions that the amount misappropriated by the petitioner amounted to Rs. 34,912.88. Thus, the final order passed by the Government in the disciplinary enquiry has in unambiguous terms fixed the liability of the misappropriated amount at Rs. 34,912.88. It is, therefore, not correct on the part of the petitioner to contend that the quantum of liability was not fixed.

To meet the submission made by the learned counsel for the petitioner that the Commercial Tax Officer has no jurisdiction to sell the immovable property to realise the amount said to have been misappropriated by the delinquent officer, the learned Government Pleader relied upon section 17-C of the Andhra Pradesh General Sales Tax Act, 1957. That provision confers on the Deputy Commercial Tax Officers all the powers of the Mandal Revenue Officer under the Andhra Pradesh Rent and Revenue Sales Act, 1839, for the sale of property distrained for any amount due under the Act and for the purpose of recovery of any amount due under the said Act. The provision contained in section 17-C of the above-said Act, therefore, negatives the submission made by the learned counsel for the petitioner that the Commercial Tax Officer has no jurisdiction to sell the immovable property and to realise the amount misappropriated by the delinquent officer.

The last submission made by the learned counsel for the petitioner is that no demand notice was issued for the ascertained amount. For that the learned Government Pleader submitted that what was issued to the petitioner is only notice intimating the petitioner of the action proposed to be taken for recovery of the misappropriated amount and thereby giving an opportunity to the petitioner to clear-off that amount. Though the notice dated May 21, 1987, was served on the petitioner, he has not taken any steps to make the payment. According to the learned Government Pleader, since the petitioner has not paid the amount in response to the notice dated May 21, 1987, it is for the Commercial Tax Officer now to initiate action under the provisions of the Andhra Pradesh Revenue Recovery Act, 1864. The petitioner without paying the amount has filed this writ petition and obtained stay thereby preventing the Commercial Tax Officer from recovering the misappropriated amount. Under these circumstances, the respondent shall be at liberty to initiate action under the provisions of the Andhra Pradesh Revenue Recovery Act, 1864, for the ascertained amount of Rs. 34,912.88 (rupees thirty-four thousand nine hundred and twelve and paise eighty-eight only), together with interest thereon from November 14, 1986 at 12 per cent per annum till the date of payment.

With the above observations the writ petition is dismissed. No costs.

Writ petition dismissed.