IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 36678 of 2009(D) -------------------------- PETITIONER(S): --------------- B.SURENDRA DAS, S/O LATE BHANU PANICKER, SOLE PROPRIETOR, HOTEL SREE VISAK, KOVALAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXATION & FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT) ON DEPUTATION TO INSPECTING ASSESSMENT (INT), COMMERCIAL TAX DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE DEPUTY TAHSILDAR (RR), NEYYATINKARA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009, ALONG WITH WP(C).36679 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).Nos.36678 and 36679 of 2009 ------------------------------ Dated this the 18th day of December, 2009 J U D G M E N T ---------------------- 1. Challenge in these writ petitions are against Ext.P5 orders in both cases, whereby the statutory appellate authority had disposed of stay petitions filed along with appeals, granting stay insisting condition for payment of 50% of the amounts of penalty imposed. It is revealed that penalty under Section 45A of the Kerala General Sales Tax Act, 1963 (KGST Act) was issued pursuant to an inspection conducted by the Intelligence Wing at the place of business of the petitioner. The alleged irregularities detected are enumerated in the orders impugned. 2. Contentions raised by the petitioner against the impugned orders of penalty were adverted to by the appellate authority, elaborately. I do not find any illegality, irregularity or impropriety with the orders impugned. On proper advertence to the contentions raised in the appeal the appellate authority had applied its mind while passing the interlocutory order. Having found that the contentions require meticulous analysis at the time of disposal of the appeals, the authority decided to grant interim stay. With respect to imposition of condition for granting W.P.(C).36678 & 36679/09-D 2 stay, it is a matter coming within the discretion of the appellate authority. I do not find any erroneous exercise of the jurisdiction or discretion vested with that authority. Therefore I am of the opinion that no interference is called with respect to the interlocutory orders which are impugned in these writ petitions. 3. However, learned counsel for the petitioners pointed out that the dispute pertains to the penalty imposed and not with respect to any tax amount due under an assessment. It is further stated that the petitioner is in a stringent financial condition that the stipulations in the impugned orders have become unworkable to be complied with. Considering the above aspects I am of the opinion that some indulgence can be shown in the matter of reducing the burden of the petitioner for compliance of the conditions stipulated in the interim orders, till the disposal of the appeals. 4. Accordingly Ext.P5 order is modified to the extent of reducing the condition imposed therein as 1/3rd of the amount in dispute, which shall be paid within a period of three weeks from today. The petitioner shall also abide by other conditions stipulated with respect to furnishing of security. C.K.ABDUL REHIM, JUDGE. okb