IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 34215 of 2009(V) -------------------------- PETITIONER(S): --------------- GLOBAL GLASS & PLYWOOD, 37/3468, NEAR DESHABHIMANI JUNCTION, KALOOR, KOCHI-17, REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.KKM.SHERIFF SRI.LAL K.JOSEPH SRI.ZIYAD RAHMAN SRI.V.R.REKESH RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES DEPARTMENT, ERNAKULAM. 3. THE COMMERCIAL TAX OFFICER (AA), OFFICE OF DEPUTY COMMISSIONER (AA), COMMERCIAL TAXES DEPARTMENT, ERNAKULAM. 4. THE INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES DEPARTMENT, ERNAKULAM. GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.34215 OF 2009 ------------------------------ Dated this the 30th day of November, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against the condition imposed in Ext.P5 order of interim stay, issued by the 2nd respondent. The petitioner had preferred Ext.P4 appeal against Ext.P3 order imposing penalty under Section 67 (1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). According to the petitioner, the penalty was imposed on the basis of allegation that the petitioner had remitted only lesser rate of tax with respect to certain items, after collecting tax at the higher rate, which is not true and correct, and that such mistake happened while filing return only due to introduction of E-filing system. 2. However, on a perusal of Ext.P5 it is noticed that the appellate authority, after adverting to all such contentions and after affording personal hearing, had issued an interim stay imposing condition for payment of 50% of the amount in dispute. The impugned order reflects proper advertence to contentions raised by the appellant and it cannot be termed as an order passed without application of the mind. The imposition of condition for granting stay is a matter which comes absolutely W.P.(C).34215/09-V 2 within the discretion of the appellate authority. Hence I do not find any reason to interfere with Ext.P5. Accordingly the writ petition is liable to be dismissed. 3. Learned counsel for the petitioner had pointed out that while computing the amount of penalty, the authority concerned has added twice the amount of interest as well as settlement fee, which is not sustainable in view of the provisions contained in Section 67(1) of the KVAT Act. However, the appellate authority can look into such contentions while disposing of the appeals. It is made clear that Ext.P5 shall be treated as complied with if the petitioner makes payment of 50% of the penalty calculated on the actual amount of tax alleged to have been evaded, and furnishes security for the balance amount. 4. At the request of the petitioner, I am inclined to extend the date stipulated for payment in Ext.P5 for a period of six weeks from today. C.K.ABDUL REHIM, JUDGE. okb