IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WA.No. 594 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.9099/2010 Dated 23/03/2010 .................... APPELLANT/PETITIONER: --------------------------- M/S. LOTUS 8 A'PART HOTELS, NEDUMBASSERY, ERNAKULAM DISTRICT (UNIT; INFRA HOTELS & RESORTS LTD) REPRESENTED BY ITS FINANCE MANAGER & AUTHORIZEDSIGNATORY SRI.BONNY ALOYSIUS. BY ADV. SRI.P.N.DAMODARAN NAMBOOTHIRI RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE COMMERCIAL TAX OFFICER(LT), DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY. 2. THE DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY. BYGOVERNMENT PLEADER, SRI. K.P. PRADEEP. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & K.Balakrishnan Nair, J. ------------------------------------------ W.A. No.594 of 2010 ------------------------------------------ Dated this the 30th day of March, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by the judgment dated 23rd March, 2010 by which the writ petition was disposed of at the admission stage, the partially successful writ petitioner has preferred the present appeal. 2. Aggrieved by the demand of penalty under the provisions of Kerala Tax on Luxuries Act, 1976, the appellant herein approached the statutory appellate authority by way of an appeal. During the pendency of the appeal, the appellant sought for stay of recovery of the penalty. We are informed at the Bar that the penalty imposed would come to Rs.49,14,144/-. The appellate authority stayed the recovery of penalty on condition that the appellant herein deposits an amount of Rs.20 lakhs and furnish security for the balance amount demanded. Not satisfied with the said order, the W.A. No.594 of 2010 - 2 - appellant approached this Court by filing W.P.(C) No.9099 of 2010. The said writ petition was disposed of at the admission stage. By the judgment under appeal, the learned Judge considered the condition imposed on the appellant to deposit Rs.20 lakhs as harsh and therefore, ordered that there shall be a stay of recovery of the penalty which is the subject matter of statutory appeal on condition that the appellant/writ petitioner deposits an amount of Rs.10 lakhs forthwith and furnish security for the balance amount demanded. Aggrieved by the same, the present appeal is filed. 3. Sri.P.N.Damodaran Namboodiri, learned counsel for the appellant, submits that the condition imposed by the learned Judge while disposing of the writ petition is an onerous one in the facts and circumstances of the case, and, therefore, the condition imposed by the learned Judge to deposit Rs.10 lakhs be wholly waived or modified. 4. We would not see any legal reason for interfering with such an order, as prayed for. The learned Judge has exercised his judicial discretion and thought it fit to impose such a condition. W.A. No.594 of 2010 - 3 - Nothing is brought to our notice to infer that such a discretion was exercised erroneously or there was any perverse exercise of jurisdiction. In the circumstances, we find no merit in the writ appeal and it is accordingly dismissed, at the admission stage. 5. Learned counsel for the appellant, however, prays that in view of the pendency of the statutory appeal, the appellant may, atleast, be granted some time to comply with the judgment under appeal. It appears from the judgment under appeal that the time granted by the learned Judge to deposit the amount of Rs.10 lakhs expires today. In view of the pendency of the statutory appeal, we permit the appellant to deposit the amount of Rs.10 lakhs within a week from today failing which the concession granted in the judgment under appeal stands vacated. J.Chelameswar, Chief Justice K.Balakrishnan Nair, Judge vns