IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 27833 of 2010(D) -------------------------- PETITIONER(S): --------------- M/S.KGA HOTELS & RESORTS PVT.LTD., VII/311 C, KUNDANOOR,N.H.47 BYEPASS, MARADU PO, ERNAKULAM 682 304,REPRESENTED BY ITS DIRECTOR SRI.THOMAS ABRAHAM. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.B.JAYAPARAKASH RESPONDENT(S): --------------- 1. THE ASST.COMMISSIONER-II(WORKS CONTRACT),OFFICE OF THE DY.COMMISIONER, COMMERCIAL TAXES,ERNAKULAM. 2. THE DEPUTY COMMISSIONER APPEALS, COMMERCIAL TAXES, ERNAKULAM. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.27833 of 2010-D ---------------------------- Dated this the 8th day of September, 2010. J U D G M E N T Petitioner is challenging Ext.P6 interlocutory order issued by the second respondent appellate authority, on a stay petition filed along with Ext.P4 appeal. Appeal was filed against Ext.P2 assessment in which liability for payment of tax under the Kerala Value Added Tax Act was imposed. The appellate authority had conducted a hearing on the stay petition and considered contentions raised in the appeal, for the purpose of granting interim stay. Having adverted to the contentions and on being satisfied that prima-facie case has been made out, interim stay was granted on condition of the petitioner remitting 50% of the tax amount in dispute, and also on furnishing security bond with respect to the balance amount. 2. Normally this Court is not supposed to interfere with the discretionary exercise of passing interlocutory orders by the appeallate authority, unless such orders are issued without application of mind and on a total non-advertance to the W.P(C) No.27833 of 2010-D 2 contentions in the appeal. On going through Ext.P6 order, it cannot be said that the appellate authority had issued the same without application of mind. It is evident that contentions raised in the appeal was looked into by the appellate authority while granting the interim order. With respect to the condition stipulated, it is not proper for this Court to interfere since the same is a matter coming within the discretion of the appellate authority. 3. However, learned counsel for the petitioner made submission that there is a fair chance of the appellate authority allowing the appeal, since the disputed amount of tax is not at all liable to be paid in view of the nature of the transactions. He further made submission that the condition stipulated in the interim order is highly unworkable in view of the financial position. Therefore the petitioner is seeking modification of the interim order to the extent of permitting to furnish Bank guarantee for the entire balance amount in dispute, instead of paying 50% of the amount. 4. Considering facts and circumstances of the case, I am of the opinion that the modification is sought for can be granted since direction can be issued to the appellate authority to have an W.P(C) No.27833 of 2010-D 3 expeditious disposal of the appeal. 5. Under the above circumstances, the writ petition is disposed of directing the second respondent to consider and pass orders on Ext.P4 appeal, after affording an opportunity of hearing to the petitioner, as early as possible at any rate within a period of six weeks from the date of receipt of a copy of this judgment. Ext.P6 order is hereby modified directing the petitioner to furnish Bank Guarantee for the entire tax amount in dispute pertaining to Ext.P4 appeal, within a period of ten days from today. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab