IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 WP(C).No. 35003 of 2010(A) -------------------------------------- PETITIONER: ------------------- M/S. MARKET INDIA INC NO.20, C.S.C-1, SECTOR-10, DWARKA, NEW DELHI – 110 075, REP. BY ITS MANAGING PARTNER, SAMEER SHARMA, AGED 36 YEARS, S/O. SUDESHAN KUMAR SHARMA. BY ADV. SRI.C.K.SREEJITH. RESPONDENTS: ------------------------ 1. THE INTELLIGENCE OFFICER, SQUAD NO.IV, ERNAKULAM, DEPARTMENT OF COMMERCIAL TAXES, EDAPPALLY, KOCHI-24. 2. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-24. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., COMMERCIAL TAXES, GOVT. SECRETARIAT, TRIVANDRUM – 695 001. 4. THE BRANCH MANAGER, CORPORATION BANK, VASANTHAKUNJ, NEW DELHI – 110 075. R1 TO R3 BY GOVT. PLEADER SRI. V.K. SHANSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 35003 of 2010 --------------------------------- Dated this the 22nd day of November, 2010 JUDGMENT The petitioner was imposed with penalty under section 47(6) of the Kerala Value Added Tax Act, as per Ext.P3. By virtue of Ext.P3, the security deposit furnished by the petitioner through Bank Guarantee was sought to be converted as penalty. It is the case of the petitioner that a copy of Ext.P3 order was not served on them. They have received a copy of the said order only from the 5th respondent Bank. Ext.P4 is the copy of a letter issued by the 1st respondent to the 5th respondent Bank requesting to forward the amount covered by the Bank Guarantee through Demand Draft. Contention of the petitioner is that they were not even afforded with any reasonable time to file statutory appeal against Ext.P3 order. If the Bank Guarantee is realised without affording any such opportunity, that will cause severe prejudice and irreparable legal injuries, is the contention. Hence the petitioner seeks direction to restrain realisation of Bank Guarantee for a reasonable period in order to facilitate the petitioner to file appeal against Ext.P3 order. WP(C).No.35003/2010 2 2. Heard learned Government Pleader appearing for respondents. Considering the facts and circumstances of the case, I am of the view that realisation of the bank Guarantee can be directed to be kept in abeyance for a reasonable period for facilitating the petitioner to approach the statutory appellate authority against Ext.P3. 3. Therefore the writ petition is disposed of directing the first respondent not to realise the Bank Guarantee, pursuant to Ext.P4 letter for a period of one month, in order to facilitate the petitioner to approach the Appellate Authority against Ext.P3. The first respondent is directed to serve a copy of Ext.P3 to the petitioner at the earliest possible. 4. It is made clear that if the petitioner files any statutory appeal against Ext.P3 within the period stipulated under the statute, before the 2nd respondent, that authority will consider and dispose of the appeal, after giving an opportunity of hearing to the petitioner, at the earliest possible, at any rate within a period of two months from the date of filing of such appeal. If any statutory appeal is properly constituted against Ext.P3 order, then the realisation of the Bank Guarantee shall be kept in abeyance till the disposal of such appeal, subject to WP(C).No.35003/2010 3 condition of the petitioner keeping the Bank Guarantee alive till such time. C.K.ABDUL REHIM,JUDGE pmn/