IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28673 of 2010(H)
1. P.NARGIS, AGED 48 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DEPUTY COMMISSIONER (APPEALS),
3. THE COMMERCIAL TAX OFFICER,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :16/09/2010
O R D E R
C.K. ABDUL REHIM, J
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WP(C) NO. 28673 OF 2010
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Dated this the 16th day of September, 2010
JUDGMENT
Ext.P3 order passed by the second respondent
appellate authority is under challenge in this Writ Petition.
Against Ext.P1 order of assessment a statutory appeal was
filed before the second respondent as per Ext.P2. Pending
disposal of the appeal stay against collection of tax amount
in dispute was sought for. Ext.P3 is the order passed on the
stay application.
2. In Ext.P3, the petitioner was directed to make
payment of 50% of the disputed tax and interest due
thereon, and to furnish adequate security with respect to
the balance amount. According to the petitioner, the
appellate authority having been found that a prima facie
case was established, could not have insisted for payment
for 50% of the tax amount as well as the interest. It is also
contended that insistence for furnishing adequate security
with respect to the balance amount is also creating
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problem.
3. The order in question is one issued by a statutory
appellate authority exercising its discretion in granting
interim relief pending disposal of an appeal. Unless such
orders are highly cryptic or one issued without application of
mind or without advertence to the contentions raised in the
appeal, no interference in exercise of jurisdiction under
Article 226 is proper and justifiable. Going by contents of
Ext.P3, it is evident that the appellate authority had
elaborately considered almost all the contentions raised in
the appeal. Having found that a prima facie case has been
established a conditional stay was granted. The question as
to whether the condition imposed is onerous or rigorous is
also not a matter arising for consideration in a Writ Petition.
Therefore on the merits of the contentions an interference
with the impugned order is not at all warranted.
4. However, learned counsel for the petitioner points
out that a major portion of amount due pertains to interest
and insistence for payment 50% tax amount as well as
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interest will work out to an onerous liability which he will
find impossible to comply with. Further, the direction for
instances to furnish adequate security will lead to difficulties
since the assessing authority will insist on furnishing Bank
Guarantee on that account. Considering the above
contentions, in exercise of equity, I am inclined to order
slight modification with respect to the conditions imposed
under Ext.P3.
5. Under the above circumstances, while dismissing
the Writ Petition, a partial modification of the conditions
stipulated in Ext.P3 is allowed, to the extent of insisting
payment of only 1/3rd of the tax amount and interest in
dispute and furnishing of Security Bond, without sureties, for
the balance amount. Time for compliance of the above
conditions will stand extended for a period of one month from
today.
C.K. ABDUL REHIM
JUDGE
dnc