IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 7842 of 2011(E) ------------------------- PETITIONER(S): --------------- M/S.CHERIYAN VARKEY CONSTRUCTIONS, CO.PVT.LTD,ALPHA PLAZA,K.P.VALLON ROAD, KADAVANTHARA,ERNAKULAM. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------- 1. THE DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES,ERNAKULAM,PIN-682015. 2. INTELLIGENCE OFFICER(IB),DEPT.OF COMMERCIAL TAXES,ERNAKULAM AT EDAPALLY, PIN-682024. 3. ASSISTANT COMMISSIONER,WORKS CONTRACT, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682015. BY SR.GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.7842 of 2011-E ---------------------------------------- Dated this the 17th day of March, 2011. J U D G M E N T Aggrieved by Ext.P1 order of penalty, the petitioner had preferred statutory appeal before the 1st respondent, as evidenced from Ext.P2. In an interlocutory application the petitioner sought stay of collection of the penalty amount, which was disposed of by Ext.P4 interim order issued by the 1st respondent. After considering merits of the contentions, the 1st respondent found that the petitioner could establish a prima facie case for granting conditional stay. Accordingly, the petitioner was insisted for payment 25% of the amount due and to furnish security bond for the balance amount. 2. The petitioner is challenging Ext.P4 order passed by the appellate authority on the ground that the condition was imposed in a mechanical manner without application of mind. According to the petitioner the grounds raised in the memorandum of appeal as well as the points urged at the W.P(C) No.7842 of 2011-E 2 time of considering the interlocutory application were not appreciated by the appellate authority, in its real perspective. The petitioner highlights the contentions raised to challenge the imposition of penalty and made an attempt to establish that the proceedings for imposition of penalty was totally unwarranted, on the facts of the case at hand. The petitioner also relied on a decision of the Hon'ble Supreme Court in Sree Krishna Electricals V. State of Tamil nadu and another (2009) 23 VST 249 (SC) to contend that there is totally erroneous exercise of jurisdiction in the matter of imposition of penalty. 3. However, since the appellate authority is in seizin of the matter, it is not proper or justified on the part of this Court to look into the merits of the contentions raised against the order imposing penalty. At the most, considering the grounds raised, the allegation is only to the effect that there is a total erroneous exercise of jurisdiction by the authority which had imposed the penalty. With respect to validity of Ext.P4 interim order, I noticed that the W.P(C) No.7842 of 2011-E 3 appellate authority had illustrated all the main grounds of the appeal and contentions raised at the time of hearing. The appellate authority while appreciating such contentions found that the Intelligence Officer had imposed penalty based on substantial reasons. However, it is further found that the appellant could establish a prima facie case for granting conditional stay. 4. Under the above circumstances, I am of the opinion that the impugned order could not be termed as one issued in a mechanical manner without application of mind. It is evident that elaborate consideration of the grounds raised is a matter which need be dealt with at the time of disposal of the appeal. Having found that the petitioner could establish a prima facie case the appellate authority had exercised discretion in granting interim stay by imposing a condition. It is further noticed that the condition imposed is only for payment of only 25% of the amount in dispute. Therefore, I do not find any ground to hold that the condition imposed is in any manner arbitrary or W.P(C) No.7842 of 2011-E 4 unreasonable. 5. Under the above circumstances, I do not find any merit to interfere with the impugned order of the appellate authority. Hence the writ petition fails and the same is accordingly dismissed. However, learned counsel for the petitioner makes an appeal to this Court to grant extension of time for compliance of the conditions stipulated in Ext.P11. 6. Heard; Government Pleader appearing on behalf of the respondents. In the interest of justice, I am of the opinion that indulgence can be shown in permitting the petitioner to comply with the conditions within a reasonable time. Accordingly the respondents are directed to permit compliance of the conditions stipulated in Ext.P4 on or before 31.3.2011. C.K.ABDUL REHIM JUDGE ab