IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18446 of 2008(U)
1. JESSY THOMAS, PROPRIETRIX,
... Petitioner
Vs
1. THE ASSISTANT COMMISSIONER (A.A)
... Respondent
2. THE DEPUTY COMMISSIONER (APPEALS)
3. THE INSPECTING ASSISTANT COMMISSIONER
For Petitioner :SRI.V.P.SUKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :24/06/2008
O R D E R
K.M.JOSEPH, J.
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WP.(C) No.18446 of 2008
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Dated this the 24th day of June, 2008
JUDGMENT
Petitioner challenges Ext.P6. Ext.P6 is an order passed by the
appellate authority under the Kerala Value Added Tax Act granting stay of
payment of tax for the assessment year 2005-2006 on condition that the
petitioner remits 40% of the amount due and furnishes security for the
balance amount within one month from the date of the order.
2. Ext.P1 is an order of assessment passed by the assessing
authority, against which the petitioner preferred appeal and also filed a stay
application, in which Ext.P6 order came to be passed. Essentially it is the
case of the petitioner that six grounds were taken for rejecting the books of
accounts and to estimate turnover. It is the further case of the petitioner that
in regard to each of these grounds the petitioner had given explanation. It is
the case of the petitioner that there must be a nexus between the turnover
arrived at and the materials presented in the case. Learned counsel for the
petitioner Sri.V.P.Sukumar infact referred to case law also in support of his
contentions.
2. The authority has taken note of the fact that the petitioner
had compounded the failure to maintain books of accounts by paying a sum
WPC. 18446/2008. 2
of Rs.3000/-. The various grounds which have been taken, though
answered, did not find favour by the assessing authority and the assessing
authority has taken the view, which is ofcourse the matter pending
consideration before the appellate authority. I do not propose to interfere at
the interlocutory stage, when the appellate authority proceeds to pass
interim order subjecting the stay granted to such conditions. Unless the
conditions are found to be totally arbitrary or perverse or illegal, it is not for
this court to sit as an appellate authority and substitute its views.
Interlocutory order cannot be equated with the final order to be passed in a
case where all the contentions of the party have to be discussed threadbare.
In this case the appellate authority has found it fit to direct payment of 40%.
I do not think that it can be said that this is a case where the authority has
proceeded to pass an order in a mechanical manner. In such circumstances,
leaving open all the contentions of the petitioner in the appeal, the writ
petition is dismissed.
(K.M. JOSEPH, JUDGE)
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