IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 36935 of 2009(J) --------------------------------------- PETITIONER(S): ------------------------ KHADEEJA EBRAHIM, PROPRIETOR, EBRAHIM ROCK INDUSTRIES, VENDUVAZHY, KOTHAMANGALAM P.O., ERNAKULAM DISTRICT. BY ADVS.MR.S.ANIL KUMAR (TRIVANDRUM) MR.K.S.HARIHARAN NAIR RESPONDENT(S): -------------------------- 1. INTELLIGENCE OFFICER, SQUAD IV, COMMERCIAL TAXES, MATTANCHERRY AT ALUVA. 2. COMMERCIAL TAX OFFICER, KOTHAMANGALAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, MUVATTUPUZHA. *ADDL. R4 IMPLEADED THE DY. COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. ADDL. R4 IS IMPLEADED AS PER ORDER DTD.13.1.2010 IN IA. 16342/20090. BY GOVT. PLEADER MR.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.36935 OF 2009 ------------------------------ Dated this the 13th day of January, 2010 J U D G M E N T ---------------------- 1. Penalty under Section 67(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) was imposed on the petitioner for the year 2007-08 subsequent to an inspection conducted by the Intelligence Squad of the Commercial Tax Department. The petitioner is conducting a granite crushing unit and producing crushed metal from granite rubbles purchased. Contention of the petitioner is that on the basis of the inspection conducted turnover of the petitioner was estimated in an arbitrary manner assuming that power consumption of the industry will be at 18 units per hour and calculating production based on such power consumption presumed, without conducting any test running or without making any scientific study. Further, the entire stock found at the time of inspection was treated as excess stock. According to the petitioner the imposition of penalty was totally without jurisdiction, since no conclusive evidence of any suppression was detected. Therefore Ext.P2 order is challenged in this writ petition without filing statutory appeal. 2. However, during pendency of the writ petition the petitioner had produced Ext.P5, copy of appeal memorandum and Ext.P6, copy of delay condonation petition filed before the W.P.(C).36935/09-J 2 appellate authority, the additional 4th respondent impleaded herein, and also amended the writ petition seeking appropriate reliefs for disposal of the statutory appeal. 3. Since the appeal filed along with petition seeking condonation of delay is pending adjudication before the additional 4th respondent, I am of the opinion that the writ petition can be disposed of on issuing necessary directions for disposal of those matters by the appellate authority. 4. Accordingly the 4th respondent is directed to consider and pass orders on Ext.P6 application filed seeking condonation of delay in filing the appeal, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. If delay in filing the appeal is condoned and if the appeal is admitted on files, the 4th respondent shall consider the appeal and dispose of the same within one month thereafter. 5. The respondents are directed to keep coercive steps of recovery of amounts covered under Ext.P2, which is initiated pursuant to Ext.P4 notice, in abeyance, till the disposal of the matter by the 4th respondent as directed above. C.K.ABDUL REHIM, JUDGE. okb