LAWS(KER)-1994-1-46

HOWYA BIBI Vs. SALES TAX OFFICER CHENGANNUR

Decided On January 28, 1994
HOWYA BIBI Appellant
V/S
SALES TAX OFFICER CHENGANNUR Respondents

JUDGEMENT

(1.) AFTER having gone through the records and after having heard counsel on both sides I have no doubt in my mind that this is a clear case of abuse of the process of the court. Petitioner is a small-scale industrial unit which had been granted exemption from payment of sales tax to the tune of Rs. 3,18,149 for the period from January 1, 1981 to December 31, 1985 which fell in the assessment years 1980-81 to 1985-86. Assessments have been completed on the petitioner for the these years. There was a dispute raised by the petitioner relating to the turnover taxable for the year 1983-84 which he took up in appeal before the Appellate Assistant Commissioner. The appellate authority allowed the appeal in part and modified the order of assessment to a very limited extent reducing the taxable turnover by an amount of Rs. 33,219. 71. A perusal of Ex. P1 order of assessment for that year would show that this amount was liable to tax at 6 per cent so that the tax effect of this modification was only to reduce the tax payable by the petitioner for the year 1983-84 by an amount of Rs. 1,993. 20, additional sales tax thereon at 15 per cent and surcharge at 5 per cent. This was all the reduction that was available to him pursuant to Ex. P2. The total of this will be less than Rs. 2,200.

(2.) AS mentioned earlier petitioner is entitled to exemption for the period from January 1, 1981 to December 31, 1985. After giving him all the exemptions due for those years to the extent of Rs. 3,18,149 it was found that he was liable to pay some amount of tax for the year 1985-86. The notice Ex. P3 was therefore issued to the petitioner calling upon him to make payment of an amount of Rs. 54,617 by way of tax and Rs. 6,467 towards surcharge after deducting Rs. 42,395 which remained to his credit as balance exemption at the end of the assessment year 1984-85. Petitioner filed objection Ex. P4 to this notice which did not really contain any substantial point except some bald general assertions. There was some mistake in the calculation made in Ex. P3 and therefore the assessing authority issued a fresh notice Ex. P5 by which he reduced the amount of tax payable mentioned in Ex. P3 from Rs. 54,617 of Rs. 46,827. The amount of surcharge remained the same. This amount was really payable because the petitioner had got a total exemption of Rs. 3,18,149, which was exhausted in the course of the assessment year 1985-86 and therefore he was liable to pay the amount due for that year over and above the residue remaining after adjusting the carry forward exemption at the end of 1984-85. This was all that was demanded as per Ex. P5, but the petitioner filed this original petition as if the assessing authority had not carried out the appellate order Ex. P2 and as if the implementation of the said order will wipe out the entire dues from the petitioner. Petitioner also demurred to the demand as per Ex. P5 on some vague grounds without stating anything substantial. On the basis of these wrong premises the petitioner obtained an order of stay from this Court of the balance amount payable as per Ex. P5 and demanded as per the revenue recovery notice Ex. P6 subject to the payment of only an amount of Rs. 20,000. In fact the petitioner was clearly liable to pay a total amount of Rs. 46,827 plus Rs. 6,467 and even assuming that the case about the alleged non-implementation of Ex. P2 was correct the amount due as per Ex. P5 would have got reduced only by an amount of less than Rs. 2,200. Nevertheless, the petitioner chose to file this original petition on wrong premises and obtained an order of stay of the amount due as per Ex. P5 subject to payment of only an amount of Rs. 20,000.

(3.) COUNSEL for the petitioner was not able to satisfy me on this point and as I said earlier, the original petition has been filed evidently with a view to stall the revenue recovery proceedings when admittedly the amount was due. On the facts of this case I find absolutely no bona fides in the original petition. As I mentioned earlier, even going by the petitioner's contention that Ex. P2 had not been implemented, which does not appear to be correct having regard to what is stated in the statement filed by the Government Pleader on January 11, 1994 the only effect thereof will be to reduce the total amount payable by an amount of less than Rs. 2,200. But what the petitioner did was to get a stay of recovery of over Rs. 53,00 subject only to payment of Rs. 20,000. That is why I said that this is a clear case abuse of the process of the court which requires stringent action from this Court. This is a case where the conduct of the petitioner is totally lacking in bona fides for which he has to be penalised wit heavy costs.