IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 4955 of 2011() ------------------------------------- PETITIONER(S): ------------------------ M.SHAJAHAN,PROPRIETOR , YOURS MARKETING, KONNIYOOR , POOVACHAL. BY ADV. SRI.T.M.SREEDHARAN RESPONDENT(S): -------------------------- 1. THE COMMERCIAL TAX OFFICER, NEDUMANGAD. 2. THE DEPUTY COMMISSIONER(A),COMMERCIAL TAXES,TRIVANDRUM. 3. THE DEPUTY TAHSILDAR(RR), NEDUMANGAD. 4. THE VILLAGE OFFICER, PERINKULAM, NEDUMANGAD TALUK. R1 TO R4 BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.4955 of 2011 ------------------------------------------- Dated this the 22nd day of February, 2011 J U D G M E N T ---------------------- Ext.P6 interim order issued by the 2nd respondent while disposing the stay petition filed along with the appeals, which were instituted against Ext.P3 revised order of assessment, is under challenge in this writ petition. The assessments pertain to the years 2003-04 and 2004-05. The assessments were originally completed under Ext.P1 and P2. Through Ext.P3, the assessments were modified invoking Section 19(1) of the Kerala General Sales Tax Act (KGST Act). Aggrieved by Ext.P3 the petitioner had preferred Ext.P4 and P5 appeals before the 2nd respondent, along with applications seeking stay. Ext.P6 is the common interim order issued, disposing the stay petitions filed along with the appeals. 2. Through Ext.P6, the 2nd respondent had granted stay, insisting condition for payment of 40% of the amount due and also on furnishing adequate security for the balance amount. Contention of the petitioner is that the condition was imposed without taking note of the main contention raised regarding the question of limitation in passing the modified W.P.(C).4955/11 -2- assessments provided under Section 19(1) of the KGST Act. According to the petitioner, the modified order of assessment was issued beyond the time limit prescribed, which is five years from the end of the assessment year. Hence the condition stipulated is unreasonable and unwarranted, is the contention. It is also pointed out that the appeals itself are posted for hearing to 16.3.2011 as evidenced from Ext.P6. Hence the petitioner seeks direction for an early disposal of the appeals and till then to stay the recovery proceedings, which are now initiated on the basis of Ext.P7 series notices. 3. On a perusal of Ext.P6, it is noticed that the appellate authority had specifically adverted to the contentions raised regarding the question of limitation. The appellate authority observed that, from the findings contained in the modified order of assessments itself it is evident that the proceedings under Section 19(1) was issued within the time limit prescribed. However, it is observed that a final decision could be arrived only after thorough analysis of the case. Taking a lenient view in the matter the condition for payment of 40% was stipulated. 4. Under the above circumstances I am of the view that the condition stipulated in Ext.P6, in exercise of discretion vested on the appellate authority, is not vitiated in any manner. W.P.(C).4955/11 -3- It could not be said that the appellate authority had failed in adverting to the contentions or in properly applying its mind in imposing such condition. However, learned counsel for the petitioner submitted that considering the financial position the condition now stipulated will work out as highly rigorous and onerous liability for the petitioner to comply with. He points out that, since the appeals are already posted for hearing, the matter could be decided within a short time. 5. Heard; Government Pleader appearing on behalf of the respondents. Eventhough I am not inclined to interfere with the condition imposed, I am of the view that indulgence can be shown in reducing rigorousness of the condition imposed, considering the financial stringencies as contended, and especially in view of the fact that the appeals are ripe for disposal. 6. Therefore the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P4 and P5 appeals on the basis of the hearing already posted to 16.3.2011, at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 7. In modification of the condition stipulated in Ext.P6, the respondents are directed to restrain recovery steps for W.P.(C).4955/11 -4- realising the amounts covered under Ext.P3, subject to condition of the petitioner remitting 1/4th of the total amount due and on furnishing Security Bond for the balance amount, within two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb