T.S. MOHAMMED HARID Vs. DISTRICT COLLECTOR, WYNAD

JUDGEMENT

(1.) The petitioners in these writ petitions, the appellants in W.A.No.1995/12 and the party respondents in WA No.956/2013 were Directors of Private Limited Companies incorporated under the provisions of the Companies Act, 1956. Such companies were assessees under the KGST Act and were being assessed accordingly. By Section 3 of the Kerala Finance Act 1999, (Act 23 of 1999) , Section 26C was introduced to the Kerala General Sales Tax Act with effect from 01.04.1999. This Section reads thus: 26C. Liability of Directors of a Private Company.- Subject to the provisions of the Companies Act 1956 (Central Act 1 of 1956) where any tax or other amount recoverable under this Act from any private company, whether existing or wound up or under liquidation, cannot be recovered for any reason whatsoever, every person who was a director of such company at any time during the period for which the tax or other amount is due under this Act shall be jointly and severally liable for the payment of such tax or other amount.

(2.) Relying on the provisions of Section 26C, revenue recovery proceedings were initiated against the petitioners in the writ petitions, the appellant in W.A.No.1995/12 and the party respondents in W.A. No.956/2013 for recovery of the sales tax due from the Private Companies of which they were Directors in relation to assessment years prior to 01.04.1999. Aggrieved by such recovery proceedings, writ petitions were filed before this Court.

(3.) When the petitioner in WP(c) No. 6599/2005 pressed into service the judgment of this Court in Kassim v. Sales Tax Officer,2007 4 KerLT 538 , where it was held that Section 26C being a prospective legislation, cannot affect rights and liabilities in respect of any assessment year prior to 01/4/1999, doubting the correctness of the same, by order dated 01.08.2012, a learned Single Judge referred the writ petition to be considered by a Division Bench of this Court. In so far as W.A.No. 1995/12 is concerned, though the contention of retrospectivity was also urged, the learned Single Judge dismissed the writ petition holding that, on facts, the petitioner therein did not deserve any relief in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India.