Kerala High Court
The Regional Provident Fund ... vs Maruti Engineers on 7 February, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
WA NO. 353 OF 2012
AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 23.06.2011
IN O.P.NO. 2021/1999 OF HIGH COURT OF KERALA
APPELLANT/2ND RESPONDENT:
THE REGIONAL PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUND ORGANISATION,
REGIONAL OFFICE, BHAVISHYNIDHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM.
BY ADV NITA N.S
RESPONDENTS/PETITIONER AND 1ST RESPONDENT:
1 MARUTI ENGINEERS
AIRPORT ROAD, PERUMTHANNI, THIRUVANANTHAPURAM,
REPRESENTED BY ITS MANAGING DIRECTOR,
PREETI JOHN-695008.
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL
SCOPE MINAR, CORE II, 4TH FLOOR,
LAXMI NAYAR, DISTRICT CENTRE,
LAXMI NAGAR, NEW DELHI-110092.
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
07.02.2024, ALONG WITH WA.2267/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Writ Appeal Nos.353 of 2012 and 2267 of 2018
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
WA NO. 2267 OF 2018
AGAINST THE ORDER/JUDGMENT OP 3315/1999 OF HIGH COURT OF
KERALA
APPELLANT/2ND RESPONDENT:
REGIONAL PROVIDENT FUND COMMISSIONER,
EMPLOYEES PROVIDENT FUNDS,
BHAVISHYANIDHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695 004.
BY ADVS.
SRI.S.SUJIN, SC, EPFO
SC, EMPLOYEES PROVIDENT FUND ORGAINSATION - EPFO
NITA N.S
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 M/S.COMPUTER AUTO SCAN AND SERVICES,
AIRPORT ROAD, PERUMTHANNI,
THIRUVANANTHAPURAM - 695 001
REPRESENTED BY ITS MANAGING PARTNER SRI. THOMAS
MUTHOOT
2 THE EMPLOYEES PROVIDENT FUND APPELLATE TRIBUNAL,
7TH FLOOR, 60, SKYLARK BUILDING,
NEHRU PLACE, NEW DELHI-110 019.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.02.2024, ALONG WITH WA.353/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Writ Appeal Nos.353 of 2012 and 2267 of 2018
3
AMIT RAWAL & C.S.SUDHA, JJ.
-------------------------------------------------------
C.M.Appl.No.161 of 2012
in
Writ Appeal No.353 of 2012,
C.M.Appl.No.1 of 2018
in
Writ Appeal No.2267 of 2018
and
Writ Appeal Nos.353 of 2012 and 2267 of 2018
------------------------------------------------------
Dated this the 07th day of February, 2024
JUDGMENT
Amit Rawal, J.
Regional Provident Fund Commissioner in this intra court
appeal is against the order of Single bench whereby the order of
assessment of the Tribunal has been set aside.
2. Enforcement Officer of the appellate Provident Fund
Commissioner conducted inspection of the premises of both two units,
that is, Maruti Engineers and M/s.Computer Auto Scan & Service
which are situated in two different buildings (adjacent to each other
with a common compound) and found that they have the managerial,
supervisory and financial integrity and made out a case of clubbing by
issuing notice for holding an enquiry under Section 7A of the
Writ Appeal Nos.353 of 2012 and 2267 of 2018
Employees' Provident Funds and Miscellaneous Provisions Act, 1952
'1952 Act', for short. Before the enquiry officer, both the
aforementioned units were represented by the lawyer and placed on
record account books, income tax pan numbers and other materials to
establish that they were different and distinct entities having a
different set of partners. Copy of the partnership deeds were also
placed on record. Assessing Officer disagreed with the contentions of
the establishments and clubbed the two units together to bring within
the purview of the provisions of the 1952 Act.
3. Two separate appeals were filed before the Tribunal which
were also dismissed. In that background, two original petitions were
preferred by the establishments, that is, O.P.No.2021/1999 by Maruti
Engineers and O.P.No.3315/1999 by M/s.Computer Auto Scan &
Service. Learned Single Bench vide common judgment dated
23/06/2011 allowed the petitions and set aside the order of assessment
as well as the Appellate order. It is in that background two appeals,
that is, W.A.No.353/2012 in the case of Maruti Engineers and
W.A.No.2267/2018 in the case of M/s.Computer Auto Scan & Service
have been preferred.
Writ Appeal Nos.353 of 2012 and 2267 of 2018
4. Both the appeals are accompanied by applications seeking
condonation of delay, of 170 days in W.A.353/12 and 2661 days in
W.A.2267/18. Delay of 2661 has been explained on the ground that
order of this Court in M/s.Computer Auto Scan & Services was sought
to be reviewed and the time spent in the review petition if excluded,
the appeal was not belated as averred and therefore prays for
condonation of delay.
5. On merits, it has been argued that the learned Single Judge
has abdicated in not noticing the report of the Enforcement officer
much less the assessment order. In other words, the
respondents/petitioners did not place on record the copy of the
assessment order which was a clincher to the controversy in dispute.
Infact the partners of both the firms were relatives. Earlier,
M/s.Computer Auto Scan was under the proprietorship of one Thomas
Muthoot but later on, in 1990, established a partnership with different
set of partners aged 20 and 22 years. The other set of partners
belonging to the same family were running the business under the
name and style Maruti Engineers. There was a managerial,
supervisory and financial integrity and that is why it was considered
Writ Appeal Nos.353 of 2012 and 2267 of 2018
as one unit to fall within the purview of 1952 Act. There is no
illegality and perversity in the order of the Assessing Officer as well
as the tribunal.
6. On the other hand, the stand of the establishment had been
that neither the Appellate authority nor the Assessing Officer
examined the documents on record, that is, the pan number issued by
the Income Tax Department, account books, sale tax returns,
electricity connections, wage registers as, Maruthi Engineers was
registered under the Factories Act and other under the Shops and
Establishments Act. All the material was also in the custody of the
authorities with whom the registration was done, nor the procedure
prescribed under sub-section (2) of Section 7A of the 1952 Act was
not followed by the enquiry officer, thus the onus to prove the case of
clubbing was not discharged. Therefore question of rebuttal did not
arise.
7. We have heard the learned counsel for the parties and
appraised the paper books and order of the Single Bench and of the
view that the appeals are wholly meritless and have no legs to stand.
The reasons are not one but many. The fact that respondents
Writ Appeal Nos.353 of 2012 and 2267 of 2018
establishments while assailing the order of the tribunal did not place
on record the order of the Assessing Officer, did not prevent the
Regional Provident Fund Commissioner to lay reliance on the same
by annexing it, except bald assertions in the statement was countered.
31 sittings alleged to be done but all documents were not examined by
the competent authority. No material has been placed on record as to
how and under what circumstances the authorities arrived at a
conclusion for clubbing the units together. Whereas learned Single
Bench while dealing with the rival contentions of the parties, arrived
at a conclusion in paragraph 21 by holding that the real test was not
properly applied by the Provident Fund Commissioner or by the
Tribunal except that the partners were members of the one family. It
would be wholly immaterial to examine such issue with regard to the
clubbing as both were having separate profit and loss account
assessments under the Income Tax Act. Even the nature of the job are
also not similar as one is an authorised service dealer and the other is
doing the detection of defects of different vehicles. There was no
evidence that they were depending on each other or having a financial
integrity, much less any document that the financial assistance was
Writ Appeal Nos.353 of 2012 and 2267 of 2018
being provided to each other. Commonality of partner is no ground to
form an opinion in view of the law laid down in Regional Provident
Fund Commissioner v. Dharamsi Morarji Chemical Company
Company Ltd, 1998 (1) LLJ 1060.
In the absence of any material either before us or before the
Single Bench, we are of the view that the findings of the Single Bench
do not require any different opinion than the one arrived at. No
ground for interference is made out. Writ appeals are dismissed.
Applications seeking condonation of delay are also dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
Jms
