Decided on May 31,1974

Kunhi Ayisia Umma Appellant


V.BALAKRISHNA ERADI,J. - (1.) THE challenge in this writ petition is directed against the order of the Tahsildar,Quilandy evidenced by Ext.P -5 dated 9th December 1972 whereby the said officer rejected a petition preferred before him by the writ petitioner herein objecting to the attachment of a property belonging to the petitioner effected under the Revenue Recovery Act for the realisation of certain arrears of salestax due from one late Sri V.G.Mammad Haji.
(2.) THE petitioner is the widow of deceased Mammad Haji referred to above who died on 17th October 1963.During his lifetime he had gifted the property in question to the petitioner by a registered deed of gift dated 10th May 1962.The arrears of salestax which are sought to be recovered by the impugned recovery proceedings related to the year 1962 -63.The assessment for that year was made only after the death of Mammad Haji and the petitioner had not been made a party to those assessment proceedings.The assessment had been made against the son of the deceased Mammad Haji treating him as the legal heir of the deceased who is liable for the tax.The order of assessment was passed only on 9th November 1964.It is clear from the facts set out above that the petitioner not being liable to pay the tax in question cannot be regarded as a defaulter in respect of the tax liability.Notwithstan­ding the above,the petitioner's property covered by the gift deed aforementioned was attached by the Tahsildar,Quilandy(2nd respondent)as per his notice evidenced by Ext.P -2 dated 9th December,1972.Prior to the said attachment the petitioner had been served with a notice in form 10 issued under section 34 of the Revenue Recovery Act and in response thereto the petitioner had submitted a representation Ext.P -3 wherein she had specifically sub­mitted that she had no liability whatever in respect of the arrear of tax due under the assessment order dated 9th November 1964 and that the land proposed to be attached belonged to her exclusively and it was not,therefore,liable to be proceeded against for realisation of the said arrears.Subsequent to the attachment of the property under Ext.P -2 the aforementioned representation(Ext.P -3)filed by the petitioner was rejected by the Tahsildar under the impugned order Ext.P -5 holding that since the deceased Mammad Haji had transferred the property to the petitioner after the liability of the salestax had arisen with full knowledge that he was liable to be assessed it was clear that he had gifted the property with the mere intention to shield them from being proceeded against by the tax recovery authority for the arrears of salestax that may be found due from him and that hence the objection petition was untenable.The petitioner contends that the action of the 2nd respondent in so rejecting her objection petition under Ext.P -5 is mani­festly illegal and prays that Ext.P -5 should be quashed and that the attachment effected against her property under Ext.P -2 should be set aside by this court. Section 5 of the Kerala Revenue Recovery Act,1968 authorises recovery of the arrears of revenue only by attachment and sale of the defaulter's immovable property.The petitioner,as already noticed,is not a defaulter in respect of the arrear of salestax sought to be recovered under the impugned proceedings.As on the date of issuance of the demand notice under section 34 the property did not belong to the defaulter,it having been transferred under a registered deed of gift in the petitioner's favour about ten years prior thereto.That under such circum­stances it is not open to the revenue recovery authority to proceed against a property standing in the name of a stranger on the ground that the transfer effected in his or her favour by the defaulter prior to the issuance of notice of demand under section 34 is either benami or fraudulent has been clearly held by this court in the decisions reported in Abdulla v.State of Kerala and another I.L.R.1962(1)Kerala 396 and Mariam v.Tahsildar,North Wynad 1969 K.L.T.860.The provisions of section 44 of the Kerala Revenue Recovery Act are not attracted in this case because the impugned attachment has not been effected for recovery of public revenue due on land ;.The mere fact that section 23(2 )(a)of the Kerala General Salestax Act,1963 provides that any tax assessed or any other amount due under the said Act may be recovered as if it were an arrear of land revenue will not operate to render the provisions of section 44 of the Revenue Recovery Act applicable to proceedings for recovery of arrears of salestax.In Gourikutty Amma v. District Collector,Alleppey 1974 K.L.T.103 a Division Bench of this court had recently occasion to consider a similar provision contained in section 28 of the Abkari Act,1077 and it was held that even though the said section enables Abkari dues being recovered as if they were arrears of land revenue it does not have the effect of converting Abkari dues into public revenue due on land and section 44 of the Revenue Recovery Act is not therefore attracted to proceedings for recovery of Abkari dues.The same principle must equally apply in the case of proceedings taken for recovery of the arrears of salestax pursuant to section 23 of the General Salestax Act.In the light of the above,it is manifest that the attachment of the petitioner's property effected under Ext.P -2 was illegal and the rejection of the petitioner's objection petition under the order Ext.P -5 passed by the 2nd respondent was erroneous.
(3.) IN the result,the attachment of the petitioner's property effected under Ext.P -2 will stand set aside and Ext.P -5 is quashed.The original petition is allowed as above.The parties will bear their respective costs.;

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