IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 30801 of 2010(A) --------------------------------------- PETITIONER: ------------------- SRI.M.K.SALIKUMAR, PROPRIETOR, SHALIMAR MOSAIC INDUSTRIES, CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADVS. SRI.E.P.GOVINDAN, SRI.V.V.GEORGEKUTTY, SMT.G.DEEPA. RESPONDENTS: ------------------------ 1. THE COMMERCIAL TAX OFFICER, IIND CIRCLE, COMMERCIAL TAXES, CHANGANACHERRY – 685 003. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM – 682 016. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM – 695 001. R1 TO R3 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.30801 of 2010 ------------------------------------------- Dated this the 11th day of October, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P7 to P9 interlocutory orders passed by the statutory appellate authority, the 2nd respondent herein. Stay petitions filed along with the appeals filed against orders of assessments with respect to the years 2007-'08, 2008-'09 and 2009-'10 were disposed of granting stay on condition of the petitioner remitting 1/3rd of the tax amount in dispute. 2. It is the contention of the petitioner that the assessments have no legs to stand and the same happened to be completed on a total erroneous consideration of the relevant provisions of law. Since the statutory appeals are pending consideration and disposal before the appellate authority, it is not proper for this court to consider merits of the contentions. W.P.(C).30801/10-A -2- 3. I am of the opinion that the question which need be looked into is as to whether the appellate authority had exercised its discretion in a proper manner. It is revealed from the impugned orders that the appellate authority had afforded an opportunity of hearing before disposing the stay petitions. All the contentions raised by the petitioner were illustrated in the interim order. After narrating such contentions, the appellate authority had observed as follows: “I have carefully considered the above contentions and verified the available records. The sustainability or otherwise of the contentions raised can be examined in detail only on verification of the connected assessment records at the time of final hearing of the appeal. However, I find prima facie case for conditional stay and hence the following orders are issued.” 4. It is revealed that the appellate authority had applied its mind and formed an opinion on the basis of the contentions raised. After being satisfied that a prima facie case for granting stay has been established, Ext.P7 to P9 W.P.(C).30801/10-A -3- orders were issued. Imposition of a condition for granting stay is a matter which is falling within the discretion of the appellate authority. Merely because the condition imposed is rigorous in nature or it causes onerous liability on the assessee to comply with, this court is not expected to interfere with such conditions. Under the above circumstances I am of the considered opinion that Ext.P7 to P9 orders are perfectly legal and warrants no interference by this court. 5. However, the petitioner had narrated various aspects regarding his financial position and appealed to this court to permit him to make payment of a sum of Rs.10 lakhs for the time being and to furnish security for the balance amount in any of the forms stipulated under Rule 19(2) of the KVAT Rules. Eventhough the writ petition deserves no merit, by way of an indulgence I am inclined to permit such a modification in the interim order. 6. In the result the writ petition is disposed of modifying Ext.P7 to P9, to the extent of granting stay on W.P.(C).30801/10-A -4- condition of the petitioner remitting a sum of Rs.10 lakhs together in all the three cases, and on furnishing security in any of the forms prescribed under Rule 19(2) of the KVAT Rules, within a period of one month from today. 7. There will be a direction to the appellate authority to expedite disposal of the appeals as early as possible. C.K.ABDUL REHIM, JUDGE. okb