IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 28774 of 2009(N) -------------------------- PETITIONER(S): --------------- M.S.SUBBAYYA, SREE SAKTHI TRADERS, KOZHIPARA, PALAKKAD. BY ADV. SRI.JOSE JOSEPH SRI.SANTHOSH P. ABRAHAM RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, (AUDIT ASSESSMENT),COMMERCIAL TAXES DEPARTMENT, PALAKKAD. 2. THE DEPUTY COMMISSIONR (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONR, COMMERCIAL TAXES, CHITTOOR, PALAKKAD. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.28774 OF 2009 ------------------------------ Dated this the 16th day of October, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against Ext.P10 interim order issued by the 2nd respondent on the stay petitions filed along with Exts.P5 to P8 appeals. The appeals are filed against the assessments pertaining to the years 2005-06, 2006- 07 and 2007-08. The main ground on which the assessments were impugned is that, rejection of Books of Accounts and best judgment assessments completed based on penalty imposed pursuant to interception of transports, are not at all sustainable. It is noticed that the assessing authority had added 10% on the conceded turnover towards probable omissions and suppressions. But contention of the petitioner is that there was no suppression detected and the transactions in question were only commission sales, which fact was not taken into account by the assessing authority. With respect to the penalty imposed on detention of transports, it is contended that those transactions are clearly accounted and are reflected in the Books of Accounts maintained by the appellant. 2. While disposing of the stay petitions the appellate W.P.(C).28774/09-N 2 authority had considered all the contentions raised by the petitioner in the appeals. On a perusal of Ext.P10 impugned order it is reflected therein that the appellate authority has applied its mind and adverted to all such contentions. After considering merit of such contentions the appellate authority had arrived at a conclusion that the petitioner has made out a prima facie case which need further elaborate examination. Therefore the appellate authority had granted interim stay insisting a condition for payment of 1/3rd of the tax amount in dispute. The petitioner is aggrieved by the condition imposed and is challenging it as unreasonable and arbitrary. 3. I find that, only after due advertence to the contentions and only after being satisfied that there is a prima facie case established which need further examination, the appellate authority had exercised its discretion in granting a conditional stay. I find no irregularity, impropriety or unreasonableness in the impugned order in insisting such a condition. It is not proper for this court to interfere with such exercise of discretion by the appellate authority, unless such order suffers from any patent infirmity or irregularity or lack of jurisdiction. 4. Hence I do not find any reason to interfere with Ext.P10. Accordingly the writ petition deserves no merit and the W.P.(C).28774/09-N 3 same is liable to be dismissed. 5. The learned counsel appearing for the petitioner submitted that the time for compliance of the condition stipulated in Ext.P10 stands expired, and he seeks indulgence for extending the time for a further period of three weeks. Considering the facts and circumstances I am inclined to extend the period stipulated in Ext.P10 for payment by a further period of one month from today. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb