IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 35350 of 2008(G) ----------------------------------------------- PETITIONER(S): --------------------- PALGHAT COSMOPOLITAN CLUB, N.H.BYE-PASS ROAD, PALAKKAD-678013,REP; BY ITS PRESIDENT, DR.A.K.SREEDHARAN. BY ADV. SRI.V.P.SUKUMAR SRI.KURYAN THOMAS RESPONDENT(S): ------------------------ 1. THE COMMERCIAL TAX OFFICER, 2ND CIRCLE, PALAKKAD. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PALAKKAD. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 35350 OF 2008 G -------------------------------------- Dated this the 1st December, 2008 JUDGMENT Petitioner challenges Ext.P13. Ext.P13 is an order passed by the Appellate Authority granting stay of collection of penalty on condition that the petitioner pays fifty per cent of the amounts due for the years 2005-2006, 2006-2007 and 2007- 2008 and furnishes security for the balance amount. 2. I heard the learned counsel for the petitioner and the learned Government Pleader. Learned counsel for petitioner points out that the Appellate Authority has categorically found that the element of mens rea has not been established by the assessing authority and yet demanded fifty per cent. Petitioner is a Club. On the basis of the amendment of the Finance Act, 2005, “Bar Hotel” includes a Club or other place which is licensed under the Foreign Liquor Rules to serve foreign liquor. According to petitioner, petitioner on the basis of a mistake had been filing Returns which were being accepted. Learned counsel WPC.35350/08 G 2 submits that the petitioner may be liable to pay interest, but no penalty is attracted at all, as mens rea is essential. Having regard to the circumstances, the Writ Petition is disposed of modifying Ext.P13 and directing that if the petitioner pays thirty per cent of the amounts due for all the years and furnishes security for the balance amount, recovery proceedings will be kept in abeyance till the disposal of the Appeal. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge