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Kerala High Court
Firoz K. vs He Deputy Commissionr (Appeals) on 17 December, 2010




WP(C).No. 37235 of 2010(D)

                      ...  Petitioner


                       ...       Respondent



                For Petitioner  :SRI.P.N.DAMODARAN NAMBOODIRI

                For Respondent  : No Appearance

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

 Dated :17/12/2010

 O R D E R
                     C.K.ABDUL REHIM, J.

                    W.P.(C).No.37235 of 2010

           Dated this the 17th day of December, 2010

                          J U D G M E N T


Challenge is against Ext.P5 interim order issued by

the 1st respondent, disposing an interlocutory application for

stay filed along with Ext.P2 appeal. The petitioner had

preferred statutory appeal aggrieved by Ext.P1 order of

assessment, completed with respect to the year 2006-07. By

the impugned order the 1st respondent had granted stay

against collection of amounts due till the disposal of the appeal,

subject to condition of the petitioner remitting 1/3rd of the

amount and on furnishing adequate security for the balance

amount, before the assessing authority.

2. According to the petitioner, the condition imposed

by the appellate authority is highly rigorous and is causing

onerous liability on the petitioner which is not possible to be

complied with. It is contended that the condition was imposed

in a quite mechanical manner, without proper application of

mind. Further contention is that the grounds raised in the

appeal were not considered in its proper perspective and that

the merits of such contentions were not properly taken note of.

W.P.(C).37235/10-D -2-

3. On a perusal of Ext.P5 it is revealed that the appellate

authority had illustrated the main grounds raised in the appeal.

It is further evident that the submissions made at the time of

hearing of the interlocutory application was also illustrated. The

order reflects proper consideration of such contentions by the

appellate authority. The appellate authority found that the

Intelligence Wing while conducting inspection had found out that

the appellant was not maintaining proper Books of Accounts in

the ordinary course of business and there was suppression of

turnover. However, the appellate authority had taken note of the

fact that the appellant had not produced Books of Accounts

before the assessing authority and that the order was issued

without verifying the Books of Accounts. Accordingly the

appellate authority had arrived at a conclusion that a prima facie

case was established for granting a conditional stay.

4. Contention regarding rigorous nature of the condition

imposed, could not be considered by this court to interfere with

an interim order issued by a statutory appellate authority.

Having found that the appellant is entitled for a conditional stay,

it is absolutely within the discretion of the appellate authority to

fix such conditions. Merely because it is rigorous in nature or

merely because the petitioner finds it difficult to comply with,

interference by this court is not called for.

W.P.(C).37235/10-D -3-

5. Under the above mentioned circumstances I am not

agreeing with the contention of the petitioner that the impugned

interim order is unsustainable in the eye of law. Hence I find no

merit in the writ petition and the same is liable to be dismissed.

6. However, learned counsel appearing for the petitioner

submitted that considering the stringent financial condition now

experienced by the petitioner, time for compliance of the

condition may be extended. Considering the fact that the

petitioner was prosecuting challenges against the interim order

in this writ petition, I am of the view that indulgence can be

shown in permitting the petitioner to comply with the condition

within a further reasonable time.

7. Accordingly, while dismissing the writ petition it is

made clear that if the petitioner makes payment of 1/3rd of the

amounts due under the impugned assessment, within a period of

3 (three) weeks from the date of receipt of a copy of this

judgment and furnishes security for the balance amount within

that time, the same shall be considered as due compliance of the

interim order impugned in this writ petition.



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