IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30801 of 2010(A)
1. SRI.M.K.SALIKUMAR,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER,
... Respondent
2. THE DEPUTY COMMISSIONER (APPEALS),
3. THE STATE OF KERALA,
For Petitioner :SRI.E.P.GOVINDAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :11/10/2010
O R D E R
C.K.ABDUL REHIM, J.
-------------------------------------------
W.P.(C).No.30801 of 2010
-------------------------------------------
Dated this the 11th day of October, 2010
J U D G M E N T
———————-
Challenge in this writ petition is against Ext.P7 to
P9 interlocutory orders passed by the statutory
appellate authority, the 2nd respondent herein. Stay
petitions filed along with the appeals filed against
orders of assessments with respect to the years
2007-’08, 2008-’09 and 2009-’10 were disposed of
granting stay on condition of the petitioner remitting
1/3rd of the tax amount in dispute.
2. It is the contention of the petitioner that the
assessments have no legs to stand and the same
happened to be completed on a total erroneous
consideration of the relevant provisions of law. Since
the statutory appeals are pending consideration and
disposal before the appellate authority, it is not proper
for this court to consider merits of the contentions.
W.P.(C).30801/10-A -2-
3. I am of the opinion that the question which need
be looked into is as to whether the appellate authority had
exercised its discretion in a proper manner. It is revealed
from the impugned orders that the appellate authority had
afforded an opportunity of hearing before disposing the
stay petitions. All the contentions raised by the petitioner
were illustrated in the interim order. After narrating such
contentions, the appellate authority had observed as
follows:
“I have carefully considered the above contentions
and verified the available records. The
sustainability or otherwise of the contentions raised
can be examined in detail only on verification of the
connected assessment records at the time of final
hearing of the appeal. However, I find prima facie
case for conditional stay and hence the following
orders are issued.”
4. It is revealed that the appellate authority had
applied its mind and formed an opinion on the basis of the
contentions raised. After being satisfied that a prima facie
case for granting stay has been established, Ext.P7 to P9
W.P.(C).30801/10-A -3-
orders were issued. Imposition of a condition for granting
stay is a matter which is falling within the discretion of the
appellate authority. Merely because the condition imposed
is rigorous in nature or it causes onerous liability on the
assessee to comply with, this court is not expected to
interfere with such conditions. Under the above
circumstances I am of the considered opinion that Ext.P7 to
P9 orders are perfectly legal and warrants no interference
by this court.
5. However, the petitioner had narrated various
aspects regarding his financial position and appealed to
this court to permit him to make payment of a sum of Rs.10
lakhs for the time being and to furnish security for the
balance amount in any of the forms stipulated under Rule
19(2) of the KVAT Rules. Eventhough the writ petition
deserves no merit, by way of an indulgence I am inclined to
permit such a modification in the interim order.
6. In the result the writ petition is disposed of
modifying Ext.P7 to P9, to the extent of granting stay on
W.P.(C).30801/10-A -4-
condition of the petitioner remitting a sum of Rs.10 lakhs
together in all the three cases, and on furnishing security
in any of the forms prescribed under Rule 19(2) of the
KVAT Rules, within a period of one month from today.
7. There will be a direction to the appellate
authority to expedite disposal of the appeals as early as
possible.
C.K.ABDUL REHIM, JUDGE.
okb