IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 WP(C).No. 38532 of 2010(N) -------------------------- PETITIONER(S): --------------- M/S.INFRA HOTELS & RESORTS LTD., (LOTUS 8 A' PART HOTELS,NEDUMBASSERY) M.G.ROAD,ERNAKULAM(DISTRICT) REP.BY ITS ACCOUNTS MANAGER BONNY ALOYSIUS. BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): --------------- 1. THE DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM 682 015. 2. THE COMMERCIAL TAX OFFICER,3RD CIRCLE, DEPARTMENT OF COMMERCIAL TAXES,ERNAKULAM 682 016. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES,ERNAKULAM 682 030. BY SR. GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.38532 of 2010-N ---------------------------------------- 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 W.P(C) No.38532 of 2010-N 5