IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 31048 of 2010 (E) -------------------------- PETITIONER: -------------------- AMBIENT SYSTEMS PVT. LTD., AL-10, AISWARYA LANE, KADAVANTHARA, KOCHI - 17, REPRESENTED BY ITS DIRECTOR, SRI.GEORGE V.GEORGE. BY ADVS. SRI.ANIL D. NAIR SMT. NIVEDITA A.KAMATH RESPONDENTS: --------------------- 1. THE ASSISTANT COMMISSIONER (WC & LT) O/O. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM 682 016. 2. THE DEPUTY COMMISSIONER (APPEALS), ERNAKULAM 682 016. 3. THE COMMERCIAL TAX OFFICER, REVENUE RECOVERY, ERNAKULAM AT KAKKANAD 682030. 4. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (TAXES), THIRUVANANTHAPURAM 695001. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------- W.P(C) No.31048 of 2010-E ---------------------------- Dated this the 12th day of October, 2010. J U D G M E N T Challenge in this writ petition is against Ext.P14 order issued by the second respondent. Aggrieved by assessments finalised under the KVAT Act and CST Act, with respect to the year 2005-06, the petitioner filed Exts.P3 and P4 appeals, accompanied by Exts.P5 and P6 stay petitions, before the second respondent. During pendency of the appeals, when recovery steps were initiated, the petitioner had approached this Court. In Ext.P13 judgment the second respondent was directed to consider the stay petitions and also the petitions seeking condonation of delay. The second respondent was directed to pass appropriate orders thereon. Ext.P14 is the interim order issued on the basis of such direction. 2. After considering the grounds raised in the appeals, the second respondent found that the petitioner could establish a prima-facie case for granting conditional stay. Therefore interim stay was granted on condition of the petitioner remitting 50% of the amount due and on furnishing security for the balance. W.P(C) No.31048 of 2010-E 2 3. According to the petitioner Ext.P14 order was issued without proper advertence to the grounds raised in the appeal. It is contended that the appellate authority had imposed the condition in a mechanical manner without proper application of mind. It is further contended that insistence for payment of 50% is highly rigorous in nature and is causing onerous liability on the petitioner which became impossible to be complied with. 4. On a scrutiny of Ext.P14 it is revealed that a personal hearing was conducted while disposing the interim applications and the representative of the petitioner appeared before the second respondent. It is further noticed that all the grounds raised before the appellate authority were considered in detail. It is reflected in the order that the authority had adverted to all such grounds and sustainability of such contentions were appreciated. The appellate authority had arrived at a conclusion that the petitioner had established a prima facie case for granting conditional stay. Exercising discretion of the appellate authority, condition for payment of 50% was insisted. 5. Since the appeals are pending disposal before the appellate authority, it is not proper for this Court to enter upon any adjudication regarding merits on the grounds raised in the appeal. W.P(C) No.31048 of 2010-E 3 Considering Ext.P4 interim order, I am not at all convinced that it is an order issued without proper application of mind. It is not a cryptic order lacking reasonings. It is noticed that all the grounds raised in the appeal has been adverted to and the appellate authority had arrived at a decision that the grounds need elaborate consideration. Having been convinced that a prima facie case was established, conditional stay was granted. Merely because the condition stipulated is causing onerous liability on the petitioner, it is not proper for this Court to interfere. Therefore the writ petition is deserves no merit and the same is liable to be dismissed. 6. However, learned counsel for the petitioner requested for extension of the period stipulated for compliance of the condition. While dismissing the writ petition it is made clear that if the petitioner complies with the stipulations contained in Ext.P4 order within a period of three weeks from today, the same shall be considered as proper compliance. 7. The second respondent is also directed to consider and pass appropriate orders on the appeals, at the earliest possible. Sd/- C.K.ABDUL REHIM, JUDGE ab //True Copy//