High Court Kerala High Court

P.Nargis vs State Of Kerala on 16 September, 2010

Kerala High Court
P.Nargis vs State Of Kerala on 16 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 28673 of 2010(H)


1. P.NARGIS, AGED 48 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. THE DEPUTY COMMISSIONER (APPEALS),

3. THE COMMERCIAL TAX OFFICER,

                For Petitioner  :SRI.NAGARAJ NARAYANAN

                For Respondent  : No Appearance

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

 Dated :16/09/2010

 O R D E R
                 C.K. ABDUL REHIM, J
                 ------------------------------
              WP(C) NO. 28673 OF 2010
              ------------------------------------
       Dated this the 16th day of September, 2010


                        JUDGMENT

Ext.P3 order passed by the second respondent

appellate authority is under challenge in this Writ Petition.

Against Ext.P1 order of assessment a statutory appeal was

filed before the second respondent as per Ext.P2. Pending

disposal of the appeal stay against collection of tax amount

in dispute was sought for. Ext.P3 is the order passed on the

stay application.

2. In Ext.P3, the petitioner was directed to make

payment of 50% of the disputed tax and interest due

thereon, and to furnish adequate security with respect to

the balance amount. According to the petitioner, the

appellate authority having been found that a prima facie

case was established, could not have insisted for payment

for 50% of the tax amount as well as the interest. It is also

contended that insistence for furnishing adequate security

with respect to the balance amount is also creating

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problem.

3. The order in question is one issued by a statutory

appellate authority exercising its discretion in granting

interim relief pending disposal of an appeal. Unless such

orders are highly cryptic or one issued without application of

mind or without advertence to the contentions raised in the

appeal, no interference in exercise of jurisdiction under

Article 226 is proper and justifiable. Going by contents of

Ext.P3, it is evident that the appellate authority had

elaborately considered almost all the contentions raised in

the appeal. Having found that a prima facie case has been

established a conditional stay was granted. The question as

to whether the condition imposed is onerous or rigorous is

also not a matter arising for consideration in a Writ Petition.

Therefore on the merits of the contentions an interference

with the impugned order is not at all warranted.

4. However, learned counsel for the petitioner points

out that a major portion of amount due pertains to interest

and insistence for payment 50% tax amount as well as

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interest will work out to an onerous liability which he will

find impossible to comply with. Further, the direction for

instances to furnish adequate security will lead to difficulties

since the assessing authority will insist on furnishing Bank

Guarantee on that account. Considering the above

contentions, in exercise of equity, I am inclined to order

slight modification with respect to the conditions imposed

under Ext.P3.

5. Under the above circumstances, while dismissing

the Writ Petition, a partial modification of the conditions

stipulated in Ext.P3 is allowed, to the extent of insisting

payment of only 1/3rd of the tax amount and interest in

dispute and furnishing of Security Bond, without sureties, for

the balance amount. Time for compliance of the above

conditions will stand extended for a period of one month from

today.

C.K. ABDUL REHIM
JUDGE
dnc