Kerala HC directed to prefer appeal before appellate authority against revenue’s recovery notice

N.K Jeeju Vs Deputy Commissioner State Goods & Service Tax Department (Kerala High Court)

Kerala High Court directed to prefer an appeal before the appellate authority against the recovery notices issued by the revenue to petitioner who is claiming to have retired from the firm.

Facts-

The present writ petition has been filed by the petitioners impugning revenue recovery notices in respect of arrears of Value Added Tax.

Notably, the arrears of tax are in respect of the financial years 2012-13 to 2018-19. The firm Sree Krishna International was incorporated by the partnership deed dated 28.07.2001. According to the petitioners, they retired from the firm with effect from 31.03.2009. The other brother and sister of the petitioners claimed exclusive right over the property covered under document No.2528/1996 of SRO Vadakara. Since the petitioners retired from the partnership firm, they never received any notice nor the assessment order. It has also been stated that there has been litigation between the petitioners and respondents in respect of the property of the firm and so the matter got ultimate decision by judgment of this Court.

Conclusion-

Held that the present writ petition is disposed of with a direction to the petitioners to approach the assessing authority within a period of ten days from today for obtaining the certified copy of the assessment order and after obtaining the certified copy of the assessment order file an appeal before the appellate authority in accordance with the provisions of law. If the petitioners file the appeal against the assessment order before the appellate authority, the same shall be considered and decided in accordance with law expeditiously, without going into the question of limitation. For a period of one month, no coercive measures shall be taken against the petitioners.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

1. The present writ petition has been filed by the petitioners impugning Ext.P4 to Ext.P7 revenue recovery notices in respect of arrears of Value Added Tax.

2. The arrears of tax are in respect of the financial years 2012-13 to 2018-19. The firm Sree Krishna International was incorporated by the partnership deed dated 28.07.2001. According to the petitioners, they retired from the firm with effect from 31.03.2009. The other brother and sister of the petitioners claimed exclusive right over the property covered under document No.2528/1996 of SRO Vadakara. Since the petitioners retired from the partnership firm, they never received any notice nor the assessment order. It has also been stated that there has been litigation between the petitioners and respondents No.5 and 6 in respect of the property of the firm and so the matter got ultimate decision by judgment of this Court in Regular First Appeal No.201/2022 dated 12.01.2023.

3. The learned counsel for the petitioners therefore submits that the petitioners are not liable to pay the amount mentioned in Ext.P4 to Ext.P7 notices as they were not the partners of the firm Sree Krishna International and no liability can be passed upon them after they retired from the partnership firm. A prayer has been made by the petitioners for quashing of the revenue recovery notices Ext.P4 to Ext.P7.

4. A counter affidavit has been filed on behalf of the State and it has been stated that as per Rule 5 (8) (b) of KGST Rules 1963, if a partner retires without the partnership being dissolved thereby he shall send to the registering authority a declaration in Form 3 within 30 days of his retirement, along with a copy of the deed of retirement. It is stated that the petitioners have never intimated or filed any declaration in Form 3 that they have retired from partnership firm of Sree Krishna International. It is further stated that under the KGST Act and Rules, the petitioners are still the partners of Sree Krishna International. The petitioners had not submitted any objection to the respondent.

5. Considering the fact that the question whether the partners had retired from the partnership firm or they were still the partners for which the assessment order has completed with the revenue recovery notices have been issued. This Court would not like to dwell upon the disputed question of fact.

6. In view thereof, the present writ petition is disposed of with a direction to the petitioners to approach the assessing authority within a period of ten days from today for obtaining the certified copy of the assessment order and after obtaining the certified copy of the assessment order file an appeal before the appellate authority in accordance with the provisions of law. If the petitioners file the appeal against the assessment order before the appellate authority, the same shall be considered and decided in accordance with law expeditiously, without going into the question of limitation. For a period of one month, no coercive measures shall be taken against the petitioners in pursuance to the impugned Ext.P4 to Ext.P7 notices.

7 With the aforesaid directions, the present writ petition is disposed of.