IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 WP(C).No. 16420 of 2008(D) -------------------------- PETITIONER: -------------- PRINCE ROLLINGS (P)LTD, 2/13, NEAR KSEB SUB STATION, KOPPAM, (VIA) PATTAMBI, MANNERGODE POST, PALAKKAD-07, REP. BY ITS MANAGING DIRECTOR, T.K. ABDUL KAREEM. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS: ----------------- 1. INTELLIGENCE OFFICER, SQUAD NO.1, SPECIAL TEAM, OFFICE OF THE DEPUTY COMMISSIONER(INTELLIGENCE), COMMERCIAL TAXES, ERNAKULAM-24. 2. DEPUTY COMMISSIONER (APPEALS), ERNAKULAM - 682 015. 3. THE INSPECTING ASSISTANT COMMISSIONER (RECOVERY), COMMERCIAL TAXES, PALAKKAD - 01. BY GOVT. PLEADER, SRI. C.K. GONVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2008, ALONG WITH WPC 16448 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) Nos. 16420 D, 16448 G, 16494 L, 16497 L, 16498 L and 16502 M OF 2008 ```````````````````````````````````````````````````` Dated this the 3rd day of June, 2008 J U D G M E N T In all these cases, the writ petitions are filed calling in question orders passed by the appellate authority granting stay of collection of penalty ordered under the impugned proceedings on depositing amounts ranging from 1/3rd to 40%. Proceedings were initiated against the petitioners for imposition of penalty alleging violation of law and evasion of tax. The petitioners preferred objections. It is after overruling the objections, the Deputy Commissioner, Intelligence, Ernakulam has proceeded to pass orders imposing penalty. It is in appeals carried from the said orders that the appellate authority has granted the orders as aforesaid. 2. I heard the learned counsel for the petitioners as also the learned Government Pleader. 3. The learned counsel for the petitioners essentially WPC.16420/08 & connected cases : 2 : addressed two points before me. Firstly, he submits that all the factories are situated in Palakkad district. He also submits that the proceedings were initiated and concluded by an officer who has no jurisdiction to impose penalty in these matters. In this connection, he referred section 3 of the Kerala Value Added Tax Act. He would submit that the petitioners, who were assessees in Palakkad, will be put to great difficulties if this course adopted. According to the learned counsel for the petitioners, even if it were open to officers from other parts of the State to carry out inspection, the actual proceedings must be taken and concluded and brought to culmination by the authority having jurisdiction. He took me, in particular, to sub section 3 of Section 3 of the KVAT Act and he would submit that the jurisdiction is conferred on officers with regard to geographical local limits. 4. The learned counsel for the petitioners further contends that these are all cases where notices were issued to the petitioners alleging violations. To each and every WPC.16420/08 & connected cases : 3 : allegation raised against the petitioners, the petitioners have taken up contentions rebutting the allegations made against them, it is submitted, but, however, the orders are passed without considering the objections. It is pointed out that these proceedings are in the nature of penalty. The learned counsel for the petitioners also referred a Bench decision of this Court in W.A.No.1726/1995 for his contention that the petitioners are entitled to an absolute stay. Per contra, the learned Government Pleader would submit that all these cases evidence that the appellate authority has indeed exercised its discretion and taken a case by case view and imposed the conditions for payment of amounts ranging from 1/3rd to 40% and it cannot, therefore, be said to be passed in a mechanical manner and no interference is called for. 5. I feel that the question relates to jurisdiction is a matter which can be gone into by the appellate authority and this Court need not, at this stage, in these proceedings, go into it under Article 226 of the Constitution. I also find that in WPC.16420/08 & connected cases : 4 : all these cases what the appellate authority has found is that the petitioners have made out a prima facie case for grant of conditional order of stay. An order of stay, it is well settled, can be absolute or a conditional order. It is a matter of discretion. No doubt discretion should be exercised with reference to relevant inputs. At the time of appellate authority decides a stay petition, the appellate authority is not deciding an appeal in toto when it will be required to discus the contentions and arrive at findings. At the stage of interim application, that process may not be necessary. I would think that having regard to the totality of facts, the petitioners have not succeeded in convincing me either in making out a case for grant of absolute stay or of any reduction and accordingly, these writ petitions are liable to be dismissed. But, at the same time, I feel that some time can be granted to deposit the amounts. Accordingly, without prejudice to the rights of the petitioners to raise all their contentions before the Appellate authority and leaving them open including the question of WPC.16420/08 & connected cases : 5 : jurisdiction, these writ petitions are dismissed but making it clear that the petitioners are granted two months time from today to deposit the amounts ordered to be deposited as a condition of stay. (K.M.JOSEPH, JUDGE) aks