IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18935 of 2010()
1. P.SHAHUL HAMEE, NICE MEDICALS, 15/619,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER,
... Respondent
2. DEPUTY COMMISSIONER (APPEALS),
3. INSPECTING ASSISTANT COMMISSIONER,
For Petitioner :SRI.N.MURALEEDHARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/06/2010
O R D E R
P.R. RAMACHANDRA MENON J.
~~~~~~~~~~~~~~~~~~~~~~~
W.P. (C) No. 18935 of 2010
~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 22nd day of June, 2010
JUDGMENT
Challenging Exts. P1 and P2 orders imposing penalty upon the
petitioner, the petitioner has filed Ext.P3 and P4 appeals, along with Exts. P5
and P6 petitions for stay. After considering Exts. P5 and P6, the appellate
authority has passed Ext.P7 common order, whereby 50% of the disputed
amount has been ordered to be paid, so as to avail the interim stay during
pendency of the appeal.
2. The learned counsel for the petitioner submits that, the course
pursued by the appellate authority is not correct or sustainable, for the reason
that the transaction involved does not attract any tax at all
3. The learned Government Pleader appearing for the respondents
submits that, the course pursued by the concerned authority is perfectly in
conformity with the relevant provisions of law, particularly since the assessee is
very much liable to file the returns as prescribed under Section 20 (1) of the
KVAT Act and the failure in this regard rather stands conceded. The case
projected by the petitioner is that the matter was entrusted to an accountant
and it was because of the failure on the part of the accountant that the returns
could not be filed on time, for which the petitioner may not be penalized.
4. After hearing both the sides and considering the persuasive
W.P. (C) No. 18935 of 2010
: 2 :
submissions made by the learned counsel for the petitioner, this Court finds
that the explanation offered by the petitioner as to the failure to file the returns
ought to have been properly weighed by the appellate authority, in the light of
the actual tax liability, if any. This being the position, the liability now cast upon
the shoulders of the petitioner, to satisfy 50 % of the penalty is rather onerous.
In any view of the matter, this Court finds it fit and proper to permit the
petitioner to have the benefit of interim stay, on condition that, the petitioner
deposits a sum of Rs.50,000/- (in stead of 50% as ordered in Ext. P7) and
furnish security for the balance amount forthwith, at any rate, within 10 days
form the date of receipt of a copy of the judgment, before the appellate
authority. On such event, the 3rd respondent shall consider and finalize Exts.
P3 and P4 appeals, as expeditiously as possible, at any rate, within two
months from the date of receipt of a copy of this judgment.
The Writ Petition is disposed.
P. R. RAMACHANDRA MENON, JUDGE
kmd