IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 32443 of 2010(E) --------------------------------------- PETITIONER(S): ---------------------- M/S.S.M.S.BUILDERS, DOOR NO.41/1295/B5, BEEVI COMPLEX, C.P.UMMER ROAD, KOCHI-682035, REPRESENTED BY ITS PARTNER SMT.SMITHA GUPTA. BY ADV. SRI.VIJAYAN. K.U. RESPONDENT(S): ------------------------- 1. COMMERCIAL TAX OFFICER (WC), O/O.THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. 682 016. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 682 016 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM AT KAKKANAD. 682 026. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695 001. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 32443 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 28th day of October, 2010 JUDGMENT Petitioner is challenging Exts.P13 and P14 interim orders issued by the Statutory Appellate Authority, the 2nd respondent. 2. With respect to assessments finalized for the years 2004-'05 and 2005-'06 under the provisions of the Kerala General Sales Tax Act, 1963 and the Kerala Value Added Tax Act, 2003 respectively, the petitioner filed appeals before the 2nd respondent. Exts.P13 and P14 are the orders issued on the stay petitions filed along with the appeals. The stay petitions were disposed of, after conducting a personal hearing. All the grounds raised in the appeals were seen considered by the 2nd respondent. The impugned orders reflect illustration of such grounds, which were urged W.P.(C) No. 32443/2010 2 before the appellate authority. It was observed by the appellate authority that on a consideration of sustainability of the grounds raised, it was found that detailed appreciation can be done only on verification of documents. However, the appellate authority found that a prima facie case was established by the petitioner for granting conditional stay. Accordingly, the 2nd respondent ordered stay on payment of 60% of the amount covered under the assessment, pertaining to the years 2004-'05 and 2005-'06. The petitioner was also directed to furnish security for the balance amount before the assessing authority. 3. Mr. K.U.Vijayan, learned counsel appearing for the petitioner, contended that even though the impugned orders reflect illustration regarding the grounds in the appeal, there was no proper application of mind by the appellate authority. It is also contended that the assessments were finalized on the basis of an inspection conducted at the business place of the petitioner on 13-4- 2007, and on the basis of the allegation that the petitioner W.P.(C) No. 32443/2010 3 had failed to take registration and to keep proper books of accounts. It was submitted that at the time when the inspection was conducted, application submitted by the petitioner for registration was pending disposal before the assessing authority. It was further contended that the addition of 50% made on the allegation of probable omissions and suppressions is totally baseless. It was also contended that an amount of Rs.8 lakhs considered as turnover on receipts was only amount pertaining to land value with respect to the undivided share in the property and it was not liable to be included in the assessable turnover. 4. Considering the contentions raised by the petitioner, I am of the view that, as observed by the appellate authority, the matter requires elaborate consideration based on documents and records. However, on a perusal of the impugned orders, I could not agree with the argument of the learned counsel that the appellate authority had totally failed in applying its mind to the W.P.(C) No. 32443/2010 4 grounds raised in the appeal. With respect to the conditions imposed, it is a matter within the discretion of the appellate authority, which cannot be interfered with in normal circumstances, by exercising jurisdiction under Article 226. It is submitted that the amount now imposed as a condition is higher than the liability of the petitioner, if ultimately the appeals are disposed. It is also submitted that compliance of such condition will be highly rigorous and the petitioner is not in a position to bear such liability, considering the financial situation. Even though I am not impressed upon the contentions of the petitioner to the extent that Exts.P13 and P14 warrant interference, I am inclined to modify the condition stipulated therein. 5. In the result, the writ petition is disposed of modifying Exts.P13 and P14 orders to the extent of permitting the petitioner to remit 1/3rd of the total amount of tax due with respect to the impugned assessments, within a period of three weeks form today and on furnishing security for the balance amount. Recovery of the balance W.P.(C) No. 32443/2010 5 amount shall be kept in abeyance, till the disposal of the appeal. 6. The 2nd respondent is directed to consider and pass orders on the appeals, as early as possible, after affording an opportunity of hearing to the petitioner. C. K. ABDUL REHIM, JUDGE. mn.