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A.KALYANI AMMAL (DIED) versus STATE OF TAMIL NADU

High Court of Madras

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A.Kalyani Ammal (died) v. State of Tamil Nadu - Second Appeal No.1292 of 1996 [2007] RD-TN 2058 (25 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 25/06/2007

CORAM:

THE HON'BLE MR. JUSTICE P.R.SHIVA KUMAR

Second Appeal No.1292 of 1996

1.A.Kalyani Ammal (died)

2.G.Annamalai

3.A.Jeyaraman

4.A.Selvaraj

5.A.Mohanasundaram

6.A.Chitra

7.A.Baskaran

8.A.Sathyamoorthy

9.A.Rajasekar

10.A.Ganesan

11.A.Rajeswari

(Appellants 2 to 11 are brought on record

as L.Rs. of the deceased sole appellant

as per order dated 08.11.2005 made in

C.M.P.Nos.3530 to 3532 of 2005) ... Appellants Vs.

1.State of Tamil Nadu,

rep. by its District Collector,

Thanjavur.

2.The Assistant Commissioner,

Commercial Taxes,

Kumbakonam. ... Respondents PRAYER

Second appeal filed under Section 100 C.P.C. against the judgment and decree dated 31.07.1995 passed in A.S.No.73 of 1994 on the file of the learned Subordinate Judge, Kumbakonam by reversing the judgment and decree dated 28.02.1994 passed in O.S.No.130 of 1987 on the file of the learned District Munsif Court, Kumbakonam.

For Appellants : Mr.T.V.Shivakumar

For Respondents : Mr.K.M.Vijayakumar

Additional Government Pleader :JUDGMENT



The plaintiff in the original suit is the appellant in the second appeal. One G.Annamalai Chettiyar, the husband of the appellant/plaintiff was doing the business of purchasing of oil seeds from various traders and selling oil extracted from them. While so, during the year 1979, to put it precisely, on 03.11.1979, when the Enforcement Wing Officers of the Tamilnadu Commercial Tax Department inspected the place of business and house of one Tvl. Swami Jayakrishna Mundi, Kumbakonam, they were able to secure certain documents evidencing purchase of groundnut kernel and gingelly seeds from the said Mundi by Annamalai Chettiyar and sale of the oil extracted from them during the year 1976-1977 in the market without bills. While the department was contemplating re-assessment of tax under TNGST Act for the year 1976-1977, the said Annamalai Chettiyar, transferred the property by way of a sale deed in favour of his mother-in-law Dhanabakiyathammal. The certified copy of the said sale deed is Ex.A.1. Dhanabakiyathammal in turn settled the property in favour of her daughter, who is the appellant herein. Thus, according to the respondents, in an indirect manner, the above said Annamalai Chettiyar had caused the property to be transferred to his wife, the appellant herein.

2.Claiming that the transfer was made fradulently to put the property beyond the reach of the department and thereby evade the tax liability and relying on Section 24(A) of T.N.G.S.T. Act, a notice was issued on 26.02.1987, calling upon the appellant/plaintiff to pay a sum of Rs.13,498/- being the arrears of tax and penalty payable by her husband Annamalai Chettiyar. It was also stated in the said notice that action would be taken under the Revenue Recovery Act against the appellant in case the demand made in the notice was not met with within 15 days from the date of receipt thereof. Aggrieved by the said notice, the appellant approached the trial Court, namely the District Munsif Court, Kumbakonam for a declaration that the said notice dated 26.02.1987 of the Assistant Commercial Tax, Kumbakonam passed in his proceedings N.K.S.991/86-A3 was void and for a consequential relief of permanent injunction restraining the respondents herein/defendants from taking any further action against the plaintiff based on the impugned communication dated 26.02.1987.

3.The said suit was resisted by the respondents herein/defendants by filing a written statement contending therein that the evasion of tax was found out on 03.11.1979 itself, that the sale transaction made to Dhanabakiyathammal was made subsequent to the said date with a fradulent intention of evading the tax due to the state; that the purchaser under the sale deed was none other than the mother-in-law of Annamalai Chettiar and that as the helm of the said attempt the property was again settled by Dhanabakiyathammal in favour of the appellant/plaintiff who is the wife of the above said Annamalai Chettiar; that the said settlement deed by Dhanabakiyathammal in favour of the appellant/plaintiff was made in order to evade the tax liability of Annamalai Chettiar and that hence, the appellant/plaintiff, being the beneficiary of the said transaction is liable to discharge the tax liability of Annamalai Chettiar under Section 24(A) of T.N.G.S.T. Act.

4.The plaintiff examined herself as the sole witness (P.W.1) and relied on documents 11 documents marked as Exs.A.1 to A.11 on the side of the plaintiff, whereas one Natarajan, the Inspector of Commercial Tax Department was examined as the sole witness (D.W.1) on the side of defendants. No document was marked on the side of the defendants.

5.After conclusion of trial, on an appreciation of evidence, the learned District Munsif, Kumbakonam took a view that application of Section 24(A) of T.N.G.S.T. Act should be ruled out for two reasons:- a)The alleged transaction took place prior to the introduction of Section 24 (A); and

b)No proceedings for assessment was pending as on the date of sale transaction in favour of Dhanabakiyathammal.

Based on the above said finding, the trial Court held that the appellant herein/plaintiff was entitled to the relief of the declaration and injunction as prayed for and thus, decreed the suit.

6.The first Appellate Court namely the Sub Court, Kumbakonam in the appeal, A.S.No.73 of 1994 preferred against the judgment of the trial Court, came to a conclusion that the suit itself was not maintainable and hence, allowed the appeal and set aside the decree passed by the trial court. Hence, the second appeal has been filed before this Court at the instance of the plaintiff.

7. This Court heard the arguments advanced on either side and paid its anxious consideration to the same.

8.At the time of the admission of the second appeal, the following substantial questions of law were framed:-

"1.Whether there is a bar under Section 51 (a) and (b) of the Tamil Nadu General Sales Tax Act in filing suit by the plaintiff claiming declaration and injunction in respect of the suit schedule mentioned property?

2.Whether Section 24(a) of the TNGST Act inserted by Act 29 of 1980 effective from 05.09.1980 is applicable to the sale deed executed by Annamalai Chettiar under Ex.A1 on 21.03.1980?

3.Is the plaintiff perfected her title by document Ex.A.1 sale deed dated 21.03.1980 and Ex.A.11 dated 12.08.1983? "

9.Out of the above three questions, the third one seems to be unnecessary and the same cannot be construed as a substantial question of law, for the simple reason that the vesting of title on the plaintiff by virtue of the settlement deed dated 12.08.1983, executed by her mother Dhanabakiyathammal, has not been either disputed or challenged. The said document was marked as Ex.A.11. Even the title of the settlor Dhanabakiyathammal by virtue of the sale deed dated 21.03.1980, a certified copy which has been marked as Ex.A.1, is also not under challenge. The only contention raised by the respondents is that the said transfers having been made with a view to evade the tax liability, of Annamalai Chettiar, the said liability got transferred to the present holder of the property by virtue of Section 24(A) of T.N.G.S.T. Act and that hence, the appellant/the plaintiff is liable to pay the amount specified in the impugned notice.

10.Learned counsel for the appellant/plaintiff taking the Court through the relevant provisions of T.N.G.S.T. Act, contended that the application of Section 24(A) of the T.N.G.S.T. ACt to the case of the plaintiff was not appropriate. According to him, the said section was not retrospective in its application and the reference made by the lower Appellate Court to Section 51(a) of T.N.G.S.T. Act to non suit the appellant/the plaintiff was erroneous. The reasons assigned by the learned counsel for the appellant are: that Section 24(A) of TNGST Act was introduced on 05.09.1980; that the sale transaction in favour of Dhanabakiyathammal had taken place even prior to the said date; that no specific provision was made giving the section retrospective application and that hence, the act of the respondents in making an attempt to shift the tax liability on the appellant/plaintiff should be held not in accordance with the provisions of the Act. Learned counsel has contended that the lower appellate court committed an error in holding that the suit itself was not maintainable under a mis-conception that the bar provided under Section 51(a) of the Act, will be applicable to any proceedings, whereas the fact remains that only as against the assessment order, the civil Court's jurisdiction stands ousted. In support of his contention, the learned counsel relied on judgment reported in 1998 STC Vol 114 494, N.PADMA COFFEE WORKS V. C.T.O. (T.N.T.S.T.). In the said judgment, the following observation has been made:- "...18.On a thorough consideration of all these circumstances, as a full fledged enquiry cannot be made in these proceedings with regard to the claim of the petitioners/purchasers to substantiate their version of bona fide purchase, they are directed to initiate civil suit to establish their title to the properties purchased by them. Therefore, these petitions are not sustainable and are liable to be dismissed and accordingly they are dismissed subject to their right of filing, the civil suits."

11.This Court is able to find substance and force in the above said contention of the learned counsel for the appellant. Sub Clause (a) of Section 51 of the T.N.G.S.T. Act bars any suit or proceedings to set aside or modify any assessment made under the Act except as expressly provided under the Act. Sub clause (b) of Section 51 says that no injunction shall be granted by any Court in respect of any assessment made, or to be made, or any action taken, or to be taken, in pursuance of any of the provisions of the Act. If the said clause is read in isolation it may give an impression that no Civil court can take cognizance of any case for injunction in respect of any demand made under any of the provisions of the Act. When it is read in conjunction with Clause (a) one can come to the conclusion that the action taken in pursuance of any of the provisions of the Act should be with reference to the assessment made under the Act referred to in sub-clause (a) of Section 51. In the instant case, admittedly, the appellant was not the assesee and her husband Annamalai Chettiar alone was the assessee. The action sought to be taken against the appellant was not in pursuance of any assesment made against her. In these circumstances, this Court is of the considered view that the observation made in the judgment (cited supra) and relied on by the learned counsel for the appellant shall apply to the instant case and that the learned Appellate judge has committed an error in non suiting the appellant.

12.Coming to the question of the casting of the liability on the appellant under Section 24(A) of the Act, this Court accepts the contention of the learned counsel for the appellant that section 24(A) cannot be applied to a transaction which took place prior to the date of its introduction in the statute. Even assuming that it shall have retrospective application as it is intended to counter fradulent transfers in order to evade the payment of tax, the condition precedent for applying the said section has not been fulfilled in the case of the appellant. In order to fix the tax liability of Annamalai Chettiyar on his transferee, namely Dhanabakiyathammal, proceedings for assessment or reassessment should have been pending as on the date of sale made in her favour. When the first transaction in favour of Dhanabakiyathammal can not be assailed as fradulent transfer because by then no proceeding for assessment or reassessment of the tax liability of the trader/transferor Annamalai Chettiar was pending, there is no scope for challenging the transfer of the property made by Dhanabakiyathammal to the appellant/plaintiff. Such a proceeding should have been pending against the transferor as on the date of transfer. In the instant case, proceeding for assessment/reassemssment was not even proved to be pending against Annamalai Chettiyar on 12.08.1983, the date of transfer of the property in favour of the appellant/plaintiff. Reference has been made to proceedings j.ehghtptr 173347/78,77 dated 19.02.1986 in the impugned notice. It gives an indication that the re-assessment was sought to be made only in the year 1986. On the other hand, the learned Additional Government pleader placing reliance on the plaint averment in paragraph No.2 contended the appellant/plaintiff herself admitted that the orders were issued to Annamalai Chettiyar for assessing the escaped sale transaction in the year 1982. Respondents have not chosen to produce any document to show that the proceedings for re-assessment of tax for the year 1976-1977 was either initiated in the year 1982 or that such proceedings were pending as on the date of transfer of the property in favour of the appellant/the plaintiff, namely 12.08.1983. It is pertinent to note that it is not even the case of the respondents that the proceedings were pending as on 12.08.1983 as against Dhanabakiyathammal. No document has been produced by the respondents to evidence pendency of any proceedings against Dhanabakiyathammal as on 12.08.1983.

13.Similarly, there is no iota of evidence to prove that the proceedings against Annamalali Chettiyar was pending as on the date of sale in favour of the Dhanabakiyathammal namely 21.03.1980. On both the grounds, the respondents have failed. Hence, the notice issued by the respondents to the appellant/plaintiff, demanding payment of sales tax and penalty payable by Annamalai Chettiar suffers from legal infirmity. The well considered judgment of the trial court should not have been disturbed by the learned subordinate judge. The learned Subordinate Judge has committed an error in non suiting the appellant holding the suit filed by the appellant barred by Section 51 of T.N.G.S.T. Act. and not maintainable. Hence, both the questions are answered, accordingly in favour of the appellant herein.

14.In the result, the second appeal succeeds and the same is allowed. The judgment of the lower appellate court is set aside, restoring the decree passed by the trial court. However, there shall be no order as to costs. To

1.The learned Subordinate Judge,

Kumbakonam.

2.The learned District Munsif Court,

Kumbakonam.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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