IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 31503 of 2010(K) -------------------------- PETITIONER(S): --------------- M/S. STAR PANELS & CEILINGS, KP 14/230, NCC ROAD, PEROORKKADA P.O., THIRUVANANTHAPURAM, HAVING BRANCH AT 32/2624 B(1), NANTHANATH, ERNAKULAM, REPRESENTED BY ITS PARTNER, GEORGE K.PETER. BY ADV. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT(S): --------------- 1. THE INTELLIGENCE OFFICER (RAPID ACTION), OFFICE OF THE DEPUTY COMMISSIONER (INT.), COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 005. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 005. SR. GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.31503 of 2010 ------------------------------------------- Dated this the 14th day of October, 2010 J U D G M E N T ---------------------- Ext.P7 interim order issued by the 2nd respondent is under challenge in this writ petition. 2. Through Ext.P2 order penalty to the tune of Rs.2,06,520/-, which is equal to double the amount of tax attempted to be evaded with respect to the transport, was imposed under Section 47(6) of the Kerala Value Added Tax Act, 2003 (KVAT Act). Aggrieved by Ext.P2 order the petitioner had preferred appeal along with stay petition before the appellate authority. Pending disposal of the matter before the appellate authority, when recovery steps were initiated, the petitioner had approached this court in WP(C).No.26970/2010. In Ext.P6 judgment this court directed the appellate authority either to consider and dispose of the appeal itself or the stay petition, after affording an opportunity of hearing to the petitioner, within a period of one month. 3. Taking note of the directions contained in Ext.P6 judgment, the appellate authority had conducted a hearing on the matter, and issued Ext.P7 order. All the contentions raised in the appeal were elaborately narrated in Ext.P7 order. The appellate authority, after considering such contentions, observed that the imposition of penalty was justified as there was no proper W.P.(C).31503/10-K -2- documents accompanied with the transport in question and that attempt of evasion in payment of tax was established. However, it is observed that taking note of the contentions raised, it is a fit case for granting conditional stay, and therefore the interim stay was granted subject to condition of the petitioner paying 50% of the amount of penalty in dispute. Further the appellate authority had posted the hearing of the appeal to 30.10.2010 at 11.A.M. 4. Eventhough various grounds are raised against the order imposing penalty, it is not justified on the part of this court to look into merits of the matter since the statutory appeal is pending consideration and disposal. Going by the impugned order I am of the opinion that the same cannot be termed as an order issued without application of mind or without advertence to the grounds raised in the appeal. Merely because the condition imposed is causing burden on the petitioner, it cannot be interfered with since the matter is coming within the discretionary power of the appellate authority. Therefore I am not impressed upon to interfere with Ext.P7 order. 5. However, considering the fact that this court has directed disposal of either the appeal or the stay petition, the appellate authority could have passed orders on the appeal because the matter was heard in detail. Further it is noticed that the appellate authority had already posted the appeal for hearing on 30.10.2010. Under such circumstances, eventhough W.P.(C).31503/10-K -3- interference in Ext.P7 order on its merits is not warranted, I am of the opinion that grievance of the petitioner can be redressed by directing the appellate authority to have a disposal of the appeal on an early date. 6. Under the above circumstances the 2nd respondent is directed to pass orders on Ext.P3 appeal, if possible on 30.10.2010 itself, or on any near date to which hearing of the appeal will be adjourned. At any rate, orders may be issued on the appeal within a period of one month from the date of receipt of a copy of this judgment. 7. It is made clear that the petitioner shall not seek any adjournment with respect to hearing of the appeal and he should co-operate with the appellate authority for an early disposal of the matter. 8. The condition imposed in Ext.P7 is modified to the extent of permitting the petitioner to furnish Security Bond for the entire amount of penalty imposed within a period of two weeks from today. If Security Bond is furnished as directed above, the amount of penalty shall not be realised till the disposal of the appeal. C.K.ABDUL REHIM, JUDGE. okb