IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 WP(C).No. 36869 of 2008(L) -------------------------- PETITIONER(S): --------------------- THOMAS JOSEPH, S/O.JOSEPH AGED 48 YEARS KALAPPURAYIL HOUSE. CHEMMANNAR PO., UDUMBANCHOLA, IDUKKI. BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.K.A.JOSEPH RAJESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. INTELLIGENCE OFFICER, SQUAD NO.III, COMMERCIAL TAXES, IDUKKI. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 36869 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2008 JUDGMENT Petitioner challenges Ext.P6. Ext.P6 is an order of penalty imposed on the petitioner under Section 67 of the Kerala Value Added Tax Act, hereinafter referred to as 'the Act'. According to the petitioner he has approached this court on the ground that it is passed without jurisdiction. Petitioner purchased a jeep, which according to him, was used for transportation of eight bags of cardamom belonging to Mr. Arol and Mr.Annadurai. He relies on Exts.P1 and P2. It is while so, petitioner came to be issued with Ext.P4 notice under Section 67(1) of the Act, to which petitioner filed Ext.P5 reply and it is rejecting the reply, petitioner is visited with Ext.P6. 2. I heard learned counsel for the petitioner Sri.Suman Chakravarthy and also the learned Government Pleader. 3. Having regard to the totality of facts, I feel that this is a case where the petitioner should be relegated to prefer an appeal and at the same time I feel that there should be a stay of recovery of the entire amount till the disposal of the appeal. No doubt the principal contention taken by the petitioner is that whatever be the position, the petitioner could not have WPC.36869/2008. 2 been visited with a penalty in the sum demanded as, according to him, under Section 67 petitioner can be called upon to pay only penalty in a sum equivalent to twice the amount of tax. I feel that this is also a contention which the petitioner can certainly urge before the appellate authority. In such circumstances, the writ petition is disposed of relegating the petitioner to prefer an appeal against the order. If the petitioner prefers the appeal within the period of limitation, the appellate authority will certainly consider each and every contention raised by the petitioner including the contention based on the absence of power as aforesaid. It is ordered that there will be a stay of realisation of the amount ordered in Ext.P6 till the disposal of the appeal. The appeal will be disposed of within a period of three months from the date of filing of the appeal after affording an opportunity of hearing to the petitioner. (K.M. JOSEPH, JUDGE) sb