IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 984 of 2011(W) ------------------------------------ PETITIONER: ------------------- M/S.KAJARIA PLUS LTD.,BUILDING NO.23-117-4, SEAPORT AIR PORT ROAD,NEAR I O C,IRUMPANAM, -682 031,REPRESENTED BY IT'S DEPUTY MANAGER MR.SIGFRID JACOB. BY ADV. SMT.K.LATHA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,SECRETARIATE,THIRUVANANTHAPURAM-1. 2. ASSISTANT COMMISSIONER,SPECIAL CIRCLE-III,COMMERCIAL TAXES,ERNAKULAM-682 019. 3. DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES,ERNAKULAM-682 019. 4. DEPUTY THAHASILDHAR, KANAYANNUR TALUK, ERNAKULAM – 682 018. R1 TO R4 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.984 of 2011 ------------------------------------------- Dated this the 12th day of January, 2011 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P4 interlocutory order passed by the statutory appellate authority, the 3rd respondent herein. Against the order of assessment finalised under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), with respect to the year 2006-'07, the petitioner had filed appeal before the 3rd respondent. Ext.P4 order is issued on an application for stay filed along with the appeal. After considering the grounds raised and after affording an opportunity of hearing to the petitioner. The appellate authority found that the petitioner is entitled for a conditional stay and accordingly interim stay was granted subject to condition of the petitioner remitting 30% of the total amount due as per the demand and on furnishing Security Bond for the balance. 2. According to the petitioner, the condition for payment of 30% was imposed in a mechanical manner, without appreciating the merits of the contentions raised by the petitioner in its proper perspective. It is submitted that the petitioner had conducted business only for a short period and W.P.(C).984/11 -2- that the entire transactions were covered by proper bills and other documents. Under such circumstances, the best judgment assessment made by the authorities is highly unreasonable and arbitrary, is the contention. It is further contended that since the petitioner company was not continuing with any business activities, it will be very difficult to get refund of amounts if any paid pending disposal of the appeal. 3. On a perusal of Ext.P4 order, I notice that the appellate authority had illustrated all the main contentions raised in the appeal memorandum as well as those urged at the time of hearing. After due advertence to such contentions the appellate authority had considered its merits and found that the assessment is prima facie sustainable since it is made on factual and legal basis. 4. However, the appellate authority observed that veracity of the contentions raised can be appreciated only after verification of books of accounts and other documents. Having convinced that a prima facie case has been established, the condition in question was imposed. 5. I am of the view that the impugned order of the appellate authority does not suffer from any illegality or infirmity, which warrants interference of this court. Imposition W.P.(C).984/11 -3- of a condition while granting stay, is a matter which is coming within the absolute discretion of the appellate authority. Merely because the petitioner is experiencing practical difficulties for complying with such conditions, it is not proper for this court to interfere. Therefore, I am of the view that the writ petition is devoid of any merits and the same is liable to be dismissed. 6. Learned counsel for the petitioner seeks direction for early disposal of the appeal on the premise that the business activity is not being continued. Needless to say that the appellate authority shall take all earnest efforts to dispose of the appeal at the earliest, on a preferential basis, considering such contingencies. The writ petition is dismissed with the above observations. C.K.ABDUL REHIM, JUDGE. okb