Santhosh S. v. The Deputy Commissioner - Kerala High Court, 30 June 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THUR AY, THE 30TH DAY OF JUNE 2022 / 9TH ASHADHA, 1944 WP(C) NO. 17759 OF 2022 PETITIONER: SANTHOSH S., AGED 31 YEARS, S/O.SELVAKUMAR, TB ROAD, VADAKKENCHERY, PALAKKAD DISTRICT-678 683. BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA V.R.SANJEEV KUMAR ANJALY T.A AISWARYA SOMAN RESPONDENTS: 1 THE DEPUTY COMMISSIONER, STATE TAX AND STATE GST DEPARTMENT, KACHERIMEDU, CHITTUR, PALAKKAD DISTRICT-678 101. 2 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 STATE TAX OFFICER, OFFICE OF THE STATE TAX AND STATE GST DEPARTMENT, ALATHUR, PALAKKAD DISTRICT-678 541. OTHER PRESENT: SMT.THUSHARA JAMES -SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.17759/2022 -:2:- J U D G M E N T The petitioner has approached this Court stating that the revenue recovery proceeding against the petitioner is barred by limitation taking into consideration the principles laid down in State of Kerala Vs. Y.R.Kallyanikutty reported in [AIR 1999 (SC) 1305]. It is submitted that the requisition for initiation of recovery proceedings is only on 24-07-2022, and the demand is made for the assessment year 2016-2017 and the period of limitation must be counted from 31.03.2017. 2. The leaned Government Pleader on instructions would submit that the assessment order in respect of assessment year 2016-2017 was issued on 30.10.2020, and even assuming without conceding that the period of limitation is 3 years as contented by the petitioner, still the revenue recovery proceedings are within time. It is also pointed out that by virtue of the judgment of this Court in W.P.(C)No.35406/2019, it has been clearly held (after considering the decision in Kallyanikutty (supra)) that the period of a limitation for recovery of amounts due to the State Government or the Union Government is 30

W.P.(C) No.17759/2022 -:3:- years and not 3 years. Reference is made to paragraph 6 were it is held as follows:

“6. In Kalyanikutty's case (supra), the Apex Court had dealt with a case, where the dues are owed to an institution notified under section 71 of the Revenue Recovery Act. In that regard, it is relevant to note that section 71 of the RR Act, which deals with the power of the Government to declare the Act applicable to any institution provides that the Government by notification of the Gazette declare, if they are satisfied, that it is necessary to do so in public interest, that the provisions of the RR Act shall be applicable to the recovery of amounts due from any person or class of persons to any specified institution or any class or classes of institutions and thereupon all the provisions of the RR Act shall be applicable to such recovery. The proviso thereto is not very relevant for the aforesaid purposes. Therefore it is clear from a reading of the said judgment of the Apex Court in Kalyanikutty's case that the revenue recovery requisition was set in motion in that case by the State Revenue Recovery Authority on the basis of requisition sent by an institution notified under Section 71 of the RR Act and the dues therein were dues owed to the said section 71 notified institution and not directly to the Government of the State of Kerala. It is now well settled that the period of limitation to sue for recovery of the amounts due to for an entity other than the State Government or a Union Government is three years from the date on which the debt became due subject to the principles of acknowledgment. Article 19 of the Schedule appended to the Limitation Act, 1963 deals with money payable or money lent. Article 113 thereon deals with any other suit for which no period of

W.P.(C) No.17759/2022 -:4:- limitation is prescribed and therein it is stipulated that the period of limitation is 3 years when the right to sue accrues. Whereas Article 112 of the schedule appended to the limitation Act explicitly provides that in the case of any suit (except a suit before the Supreme Court in the exercise of competent juri iction) by and on behalf of the central government or any state Government, including the government of the State of Jammu & Kashmir, then the period of limitation is 30 years and the period of limitation would begin to run under the limitation Act against a like suit by a private person. Therefore, there cannot be any dispute that unlike the period of limitation for recovery of monetory dues which is applicable to an entity other than the State Government or Union Government, the period of limitation for filing a suit for recovery of monetory dues owed to a State Government or the Union Government would be 30 years as per Article 112 of the schedule appended to the Limitation Act”.

Having heard the learned counsel for the petitioner and the learned Senior Government Pleader, I am of the opinion that there is merit in the contention taken by the learned Senior Government Pleader that even assuming that the period of limitation is 3 years as contented by the petitioner, the recovery proceedings have been initiated within a period of 3 years considering the fact that the assessment order for the year 2016-2017 was issued only on 30-10-2020. It is settled that

W.P.(C) No.17759/2022 -:5:- whether the recovery proceedings had been initiated within limitation will have to be determined with reference to the date of requisition which, even on the petitioner’s own showing is 27-04-2022. This is clearly within a period of 3 years from the date of issue of the order of assessment. That apart, I am in respectful agreement with a view taken by learned single Judge of this Court in W.P(C) No.35406/2019 and connected case. There is absolutely no merit in the contentions raised in the writ petition and the writ petition is liable to be dismissed.

Accordingly this writ petition is dismissed. GOPINATH P.

JUDGE ats

W.P.(C) No.17759/2022 -:6:- APPENDIX PETITIONER EXHIBITS EXHIBIT P1OF THE DEATH CERTIFICATE ISSUED BY THE