High Court Kerala High Court

M/S.Infra Hotels & Resorts Ltd vs The Deputy … on 3 January, 2011

Kerala High Court
M/S.Infra Hotels & Resorts Ltd vs The Deputy … on 3 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 38532 of 2010(N)


1. M/S.INFRA HOTELS & RESORTS LTD.,
                      ...  Petitioner

                        Vs



1. THE DEPUTY COMMISSIONER(APPEALS),
                       ...       Respondent

2. THE COMMERCIAL TAX OFFICER,3RD CIRCLE,

3. THE INSPECTING ASSISTANT COMMISSIONER,

                For Petitioner  :SRI.P.N.DAMODARAN NAMBOODIRI

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :03/01/2011

 O R D E R
                     C.K.ABDUL REHIM, J
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                W.P(C) No.38532 of 2010-N
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          Dated this the 3rd day of January, 2011.

                        J U D G M E N T

Challenge in this writ petition is against Ext.P4

common interim order issued by the 1st respondent

appellate authority. The petitioner had preferred statutory

appeals before the 1st respondent, aggrieved by Exts.P1 and

P1A orders of assessments finalised with respect to the

months 11/09 and 12/09. Along with Exts.P2 and P2A

appeals, the petitioner had preferred stay petitions. Ext.P4

is the common interim order of stay passed by the 1st

respondent. Through the impugned order, interim stay was

granted subject to condition of the petitioner paying 1/3rd of

the total amount due and on furnishing security bond for the

balance amount.

2. According to the petitioner, the assessments

under Section 22(3) of the Kerala Value Added Tax Act

(KVAT Act) were completed only because of the reason that

the petitioner had failed to file returns and to make payment

W.P(C) No.38532 of 2010-N 2

of the tax amount due, within the statutory time limit. It is

contended that the petitioner had subsequently filed returns

and remitted the entire tax amount. Therefore, the

petitioner is denying liability for payment of the amounts

covered under Exts.P1 and P1A. Under such circumstances,

the petitioner is assailing the conditions imposed through

Ext.P4, for payment of the 1/3rd of the amount in dispute.

3. On a perusal of Ext.P4 it is noticed that while

passing the interim order, the appellate authority had taken

note of the contentions raised by the petitioner and the said

order was issued after affording opportunity of hearing. It

is noticed that the petitioner had raised the contentions as

stated above, and the appellate authority had illustrated

such contentions in the impugned interim order. It is

revealed from the order that the appellate authority had

taken note of such contentions and found that the

assessment was completed on the basis that there is clear

violation of sub rule (1) of Rule 22 of KVAT Rules.

Considering the contentions of the petitioner that he had

W.P(C) No.38532 of 2010-N 3

requested time for filing returns, before the assessing

authority, the 1st respondent found that a prima facie case

has been established. Accordingly, the interim stay was

granted till the disposal of the appeal, subject to condition

of the petitioner making payment of 1/3rd of the amount.

4. I am of the considered opinion that Ext.P4 order

does not suffers from any illegality or infirmity. It is evident

that the main contention raised by the petitioner was

adverted to by the appellate authority and after considering

merits of such contentions the appellate authority found

that the petitioner is entitled for a conditional stay. I am of

the further opinion that it could not be held that the

condition imposed is arbitrary or unreasonable in any

manner. I am not inclined to interfere with the condition

imposed, which is a matter coming within the discretionary

jurisdiction vested with the appellate authority. Hence the

writ petition deserves no merit and the same is liable to be

dismissed.

5. However, learned counsel for the petitioner made

W.P(C) No.38532 of 2010-N 4

an appeal to this Court to extent the period stipulated for

compliance of the condition, on the basis that he was

prosecuting this writ petition. I am of the view that

indulgence can be shown in permitting the petitioner to

comply with the condition within a reasonable time.

6. Accordingly, the writ petition is hereby dismissed.

But it is made clear that if the petitioner complies with the

conditions stipulated in Ext.P4 within a period of two weeks

from the date of receipt of a copy of this judgment, the same

shall be considered as due compliance.

Sd/-

C.K.ABDUL REHIM
JUDGE

//True Copy//

P.A to Judge
ab

W.P(C) No.38532 of 2010-N 5