IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 2008 of 2010(A) ------------------------- PETITIONER(S): --------------- OCEAN WEALTH EXPORTERS, KAKKATHURUTHU ROAD, ERAMALLUR, ALAPPUZHA. (REPRESENTED BY PARTNER ADNAN ANWAR). BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, KUTHIATHODU, ALAPPUZHA DISTRICT. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. C.K GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ------------------------- W.P (C) No.2008 of 2010 -------------------------- Dated this the 4th February, 2010 J U D G M E N T The petitioner is aggrieved of the condition imposed by the appellate authority while passing Ext.P8 order of stay, to avail the benefit of the interim order during the pendency of the appeal. 2. Many a ground has been raised by the petitioner legal and factual, also citing various judicial precedents,. The averments and allegations in the writ petition have been rebutted from the part of the 1st respondent by filing a statement, wherein, it is clearly stated that the penalty was imposed, not on any export turnover but for the violation of Section 10 of the K.V.A.T. Act and Rule 42 (2) of the Rules thereunder, committed by the petitioner. It is also stated that the petitioner very much comes within the ambit of the term "Awarder" as defined under Section 2 (vii) of the Act and the work assigned to the parties involve construction, fitting, fabrication, erection, installation of plant equipments and machinery which comes within the W.P (C) No.2008 of 2010 2 purview of Section 2 (iv) of the Act. This being the position, the petitioner was very much liable to have deducted the tax at the rate 12.5%, which admittedly has not been done in the instant case, thus leading to the inference as to 'evasion' committed by the petitioner imposing penalty as prescribed; which in turn has been subjected to challenge by filing appeal before the 2nd respondent. It was after considering all the facts and figures, that the appellate authority passed Ext.P8 order granting interim stay; subject to the condition that the 1/3rd of the due amount was paid by the petitioner. The order impugned clearly shows that the matter was considered by the appellate authority with proper application of mind. This Court does not find any illegality or impropriety in the manner of having exercised the discretion imposing the condition, whereby, the petitioner has been directed to pay 1/3rd of the penalty imposed. 3. In the above facts and circumstances, interference is declined and the writ petition is dismissed. However, taking note of the fact that the time stipulated by W.P (C) No.2008 of 2010 3 the 2nd respondent to satisfy the condition imposed in Ext.P8 is already over, the petitioner is permitted to deposit the amount within a period of two weeks from the date of receipt of a copy of this judgment, so as to avail the benefit of Ext.P8 order of stay. P.R.RAMACHANDRA MENON, JUDGE ma W.P (C) No.2008 of 2010 4 W.P (C) No.2008 of 2010 5