IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 8015 of 2010(B) --------------------------------------- PETITIONER(S): ------------------------ KERALEEYAM AYURVEDIC RESORT, A UNIT OF SD PHARMACY PVT. LTD., HAVING ITS REGISTERED OFFICE AT DHANWANTHARI BHAVAN, ALAPPUZHA-688 011, REP. BY ITS MANAGING DIRECTOR MR.K.RAMESH. BY ADVS. MR.ANIL D. NAIR, MR.NIVEDITA A.KAMATH RESPONDENT(S): --------------------------- 1. THE COMMERCIAL TAX OFFICER,(LUXURY TAX), COMMERCIAL TAX OFFICE, ALAPPUZHA. 2. THE DEPUTY COMMISSIONER(APPEALS)KOLLAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY(TAXES), SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No. 8015 of 2010-B ---------------------------- Dated this the 15th day of March, 2010. J U D G M E N T The petitioner is before this Court challenging the condition imposed by the appellate authority, as borne by Exts.P21 and P22 orders granting interim stay, directing the petitioner to satisfy 50% of the liability in respect of the tax assessed and also in respect of the penalty imposed. Many a ground has been raised in this Writ Petition challenging the course pursued by the appellate authority stating that the condition imposed is not correct or sustainable, which however is sought to be rebutted from the part of the respondents, referring to the actual facts and figures. On going through the records, it is seen that Exts.P9 to P11 appeals were filed along with interlocutory applications for stay and it was after considering the facts and figures that Ext.P21 order was passed granting interim stay on condition that the petitioner satisfied 50% of the tax liability thereunder. This Court finds that there is proper application of mind on the part of the appellate authority in this regard and no interference is called for. W.P(C) No. 8015 of 2010-B 2 2. With regard to the proceedings imposing penalty, the petitioner has filed Exts.P15 to P17 statutory appeals and it was after considering the application for stay, that Ext.P22 order has been passed adopting similar course imposing 50% of the liability for availing the benefit of interim stay. Taking note of the particular facts and circumstances, this Court finds that there is no proper reasoning to sustain the same and the petitioner could be permitted to pursue the appeal in respect of penalty, without being confronted by the coercive steps. As such, the condition imposed vide Ext.P22 to pay 50% of the liability towards penalty is held as not correct or sustainable and accordingly, the said condition is set aside. It is made clear that the petitioner will enjoy the benefit of interim order notwithstanding the condition imposed under Ext.P22, during the pendency of the appeals ie, Ext.P15 to P17. 3. In the above circumstances, the condition imposed by the appellate authority vide Ext.P21 is sustained and the condition imposed in Ext.P22 is set aside. However, since the time to satisfy the liability under Ext.P21 will expire within two days, the petitioner is given a further period of ten days, so as to satisfy the said condition. It is made clear that the petitioner shall furnish sufficient W.P(C) No. 8015 of 2010-B 3 security in respect of the amount covered in the impugned order imposing penalty. Exts.P9 to P11 as well as Exts.P15 to P17 appeals shall be considered and finalised by the appellate authority, as expeditiously as possible, at any rate within six weeks from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab W.P(C) No. 8015 of 2010-B 4