IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15700 of 2010(J)
1. BEENA BALAN, PROPRIETOR,
... Petitioner
Vs
1. THE INTELLIGENCE OFFICER,
... Respondent
2. THE DEPUTY COMMISSIONER (APPEALS),
For Petitioner :SRI.PREMJIT NAGENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :08/06/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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WP(C) NO. 15700 OF 2010
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Dated this the 8th day of June, 2010
JUDGMENT
The petitioner is challenging the correctness and sustainability of
Ext.P7 interim order passed by the 2nd respondent, whereby the petitioner
has been directed to satisfy 50% of the disputed liability towards the penalty
imposed, so as to avail the benefit of interim stay during the pendency of the
appeal.
2. The sequence of events as narrated in the Writ Petition shows
that the petitioner being aggrieved of the penalty imposed under Section 67
of the Kerala Value Added Tax Act, has preferred Ext.P5 appeal before the
2nd respondent mainly contending that, the concerned officer who passed the
assessment order had not actually heard the petitioner, nor had he verified
the books of accounts. The petitioner in fact had appeared, in response of
the notice, before some other officer and this being the position, there is total
violation of all the known principles of natural justice, which accordingly has
been highlighted in paragraph 2 of the Ext.P5 memorandum of appeal. The
learned counsel for the petitioner also brought it to the notice of this Court,
that the challenge raised as above, has been specifically taken note of by the
second respondent while passing Ext.P7, but absolutely no discussion has
been made as to the merits of the case or as to the consequences, but for
simply observing that the petitioner had made a request to satisfy the
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‘compounding fee’ not exceeding Rs.1 lakh and that she has not challenged
the fixation of the tax liability which made the said authority to direct the
petitioner to deposit 50% of the disputed penalty.
3. The learned Government Pleader for the respondents, with
reference to the contents of the statement submits that the discrepancy pointed
out from the part of the petitioner as to the date and the proceedings contained
in the order imposing the penalty are only trivial clerical errors. However, it is
admitted that the concerned officer by name ‘Mathew Samuel’ who was holding
the office of the Commercial Tax Officer (Audit and Assessment) on deputation
of the Intelligence Wing had processed the crime file of the petitioner. Later,
when he was subsequently transferred from the said office, the crime file was
left in the disposal of the Intelligence officer squad No. 3, Thiruvananthapuram.
This by itself shows that, there is some force in the submissions/contentions
raised in the part of the petitioner. However, it is pointed out from the part of
the learned Government Pleader that the petitioner was never prepared to
have the offence compounded in accordance with relevant provisions of law,
particularly under Section 17 (4) and that the petitioner was insisting that the
request to have the offence compounded for an amount not exceeding one
lakh be sent to higher authority for getting permission; which cannot be the
proper course under any circumstance. However, the fact remains that the 2nd
respondent passed Ext.P7 order fixing the liability to the extent of 50% without
proper discussion as to be course and consequences projected from the part
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of the petitioner as mentioned hereinbefore.
4. Now the only question is whether the 2nd respondent is to be
directed to consider the interlocutory application for stay (Ext.P6) afresh or
whether the appellate authority could be directed to finalise and consider the
appeal in accordance with law, particularly in the light of the nature of the
contentions raised from either side. After going through the materials on record
and after hearing both the sides, this Court finds it fit and proper to direct the
2nd respondent to consider Ext.P5 appeal on merits and to have it finalized in
accordance with law, and it is ordered accordingly. This shall be done as
expeditiously as possible, at any rate, within two months from the date of
receipt of a copy of this judgment.
5. Considering the facts and circumstances, this Court also finds that
the petitioner can be given the benefit of interim stay till the finalization of the
proceedings as above, on condition that the petitioner satisfies a total sum of
Rs.2,00,000/- (Rupees Two lakhs only) and furnishes security for the balance
disputed liability within three weeks. Subject to this, the recovery proceedings,
if any, shall stand kept in abeyance.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc