IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 31248 of 2011(E) -------------------------- PETITIONER: -------------- P.BALAKRISHNAN, S/O . PONNUSWAMY NADAR, PROPRIETOR, KRISHNAN & COMPANY NO.15, CHELIMADA, K.K. ROAD, KUMILI- 685 909, DIST. IDUKKI. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENT(S): ------------------- 1. THE COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX, SQUAD NO. III, IDUKKI AT DEVIKULAM, DIST. IDUKKI 685613. 2. THE INTELLEGENCE OFFICER. SQUARD NO. IV, IDUKKI AT NEDUMKANDAM 685553. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, PERUMANOOR, ERNAKULAM 682016. 4. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES, THODUPUZHA , DIST.IDUKKI. 5. S.K.AIYAKKALAI NADAR SON, 1093, PERIYAKULAM ROAD, THENI, TAMILNADU 625531. BY GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk WP(C).No. 31248 of 2011(E) ----------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS --------------------------------- EXT.P1 A TRUE COPY OF NOTICE VIDE O.R.NO.288/2010-11 DTD.05-10-2010. EXT.P2 A TRUE COPY OF ORDER NO. OR 288/2010-11 DTD. 05-10-2010. EXT.P3 A TRUE COPY OF RECEIPT DTD. 5-10-2010. EXT.P4 A TRUE COPY OF STATEMENT OF OBJECTION DTD. 20-10-2010. EXT.P5 A TRUE COPY OF JUDGMENT DTD. 03-03-2011 IN WRIT APPEAL NO.303/2011. EXT.P6 A TRUE COPY OF ORDER NO. OR 288/2010-11 DTD. 18-05-2011 EXT.P7 A TRUE COPY OF APPEAL NO.KVAT 2334/2011 DTD. 18-08-2011. EXT.P8 ATRUE COPY OF THE PETITION FOR STAY DTD. 17-11-2011. EXT.P9 A TRUE COPY OF NOTICE NO. 32060470904/2010-11 DTD. 31-10-2011. RESPONDENTS' EXHIBITS : NIL ------------------------------ / TRUE COPY / P.A. TO JUDGE VK S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.31248 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2011 J U D G M E N T Against an order imposing penalty on the petitioner, the petitioner filed Ext.P7 appeal along with Ext.P8 petition for stay. In the meanwhile, Ext.P9 pre-assessment notice has been issued to the petitioner by the assessing authority to assess the petitioner on the basis of the penalty order, which is under challenge in Ext.P7 appeal. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) Issue appropriate Writ calling for the records of the case leading to Exhibit P9 and quash the same in so far as it proceed pursuant to the order vide Exhibit P6 to make assessment on escaped turnover for the whole year suspecting the irregularity throughout the year by guess and best judgment. (ii) Issue a Writ of Mandamus commanding the 3rd respondent to pass orders on Exhibit P7 in the usual course. (iii) issue a writ commanding the 1st & 2nd respondents to refund the sum of Rs.19,400/- collected towards security deposit vide Exhibit P3 to the petitioner forthwith.” 2. The contention of the petitioner is that the petitioner has already paid the penalty amount. But, in view of the W.P.(C)No.31248 of 2011 -2- proceedings for assessment on the basis of the penalty order, the petitioner seeks stay of the order of penalty itself. 3. I have heard the learned Government Pleader also. I am not inclined to grant the reliefs prayed for. I cannot direct the appellate authority to dispose of the petitioner's appeal out of turn, insofar as there are many other similar appeals pending consideration of the appellate authority and I cannot direct the appellate authority to give priority to the petitioner's appeal in the matter of disposal over other old appeals which are pending. I am also not inclined to interdict the assessment proceedings, insofar as, according to me, the remedy of the petitioner is to file objections to the pre-assessment notice and to file an appeal against the ultimate assessment order to be passed seeking stay of recovery of the assessed tax and hearing of that appeal along with Ext.P7 appeal. Therefore, without prejudice to that right, this writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/