IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 38532 of 2010(N)
1. M/S.INFRA HOTELS & RESORTS LTD.,
... Petitioner
Vs
1. THE DEPUTY COMMISSIONER(APPEALS),
... Respondent
2. THE COMMERCIAL TAX OFFICER,3RD CIRCLE,
3. THE INSPECTING ASSISTANT COMMISSIONER,
For Petitioner :SRI.P.N.DAMODARAN NAMBOODIRI
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :03/01/2011
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.38532 of 2010-N
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Dated this the 3rd day of January, 2011.
J U D G M E N T
Challenge in this writ petition is against Ext.P4
common interim order issued by the 1st respondent
appellate authority. The petitioner had preferred statutory
appeals before the 1st respondent, aggrieved by Exts.P1 and
P1A orders of assessments finalised with respect to the
months 11/09 and 12/09. Along with Exts.P2 and P2A
appeals, the petitioner had preferred stay petitions. Ext.P4
is the common interim order of stay passed by the 1st
respondent. Through the impugned order, interim stay was
granted subject to condition of the petitioner paying 1/3rd of
the total amount due and on furnishing security bond for the
balance amount.
2. According to the petitioner, the assessments
under Section 22(3) of the Kerala Value Added Tax Act
(KVAT Act) were completed only because of the reason that
the petitioner had failed to file returns and to make payment
W.P(C) No.38532 of 2010-N 2
of the tax amount due, within the statutory time limit. It is
contended that the petitioner had subsequently filed returns
and remitted the entire tax amount. Therefore, the
petitioner is denying liability for payment of the amounts
covered under Exts.P1 and P1A. Under such circumstances,
the petitioner is assailing the conditions imposed through
Ext.P4, for payment of the 1/3rd of the amount in dispute.
3. On a perusal of Ext.P4 it is noticed that while
passing the interim order, the appellate authority had taken
note of the contentions raised by the petitioner and the said
order was issued after affording opportunity of hearing. It
is noticed that the petitioner had raised the contentions as
stated above, and the appellate authority had illustrated
such contentions in the impugned interim order. It is
revealed from the order that the appellate authority had
taken note of such contentions and found that the
assessment was completed on the basis that there is clear
violation of sub rule (1) of Rule 22 of KVAT Rules.
Considering the contentions of the petitioner that he had
W.P(C) No.38532 of 2010-N 3
requested time for filing returns, before the assessing
authority, the 1st respondent found that a prima facie case
has been established. Accordingly, the interim stay was
granted till the disposal of the appeal, subject to condition
of the petitioner making payment of 1/3rd of the amount.
4. I am of the considered opinion that Ext.P4 order
does not suffers from any illegality or infirmity. It is evident
that the main contention raised by the petitioner was
adverted to by the appellate authority and after considering
merits of such contentions the appellate authority found
that the petitioner is entitled for a conditional stay. I am of
the further opinion that it could not be held that the
condition imposed is arbitrary or unreasonable in any
manner. I am not inclined to interfere with the condition
imposed, which is a matter coming within the discretionary
jurisdiction vested with the appellate authority. Hence the
writ petition deserves no merit and the same is liable to be
dismissed.
5. However, learned counsel for the petitioner made
W.P(C) No.38532 of 2010-N 4
an appeal to this Court to extent the period stipulated for
compliance of the condition, on the basis that he was
prosecuting this writ petition. I am of the view that
indulgence can be shown in permitting the petitioner to
comply with the condition within a reasonable time.
6. Accordingly, the writ petition is hereby dismissed.
But it is made clear that if the petitioner complies with the
conditions stipulated in Ext.P4 within a period of two weeks
from the date of receipt of a copy of this judgment, the same
shall be considered as due compliance.
Sd/-
C.K.ABDUL REHIM
JUDGE
//True Copy//
P.A to Judge
ab
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