IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37235 of 2010(D)
1. FIROZ K., PROPRIETOR, K.R.S.FURNITURE,
... Petitioner
Vs
1. HE DEPUTY COMMISSIONR (APPEALS),
... Respondent
2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY,
3. COMMERCIAL TAX OFFICER, DEPARTMENT OF
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.
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W.P.(C).No.37235 of 2010
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Dated this the 17th day of December, 2010
J U D G M E N T
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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.
C.K.ABDUL REHIM, JUDGE.
okb
