IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 4004 of 2008(B) ------------------------- PETITIONER: --------------- QUALITY TRADE LINKS K M C XXXII/312 KALAMASSERY 683 104,REPRESENTED BY MANAGING PARTNER, BLASANT PAUL.K. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENTS: ------------------ 1. COMMERICAL TAX OFFICER KALAMASSERY PIN 682 024. 2. COMMERICAL TAX OFFICER (AA) OFFICE OF THE DEPUTY COMMISSIONER (AA) ERNAKULAM PIN 682 015. 3. DEPUTY COMMISSIONER (APPEALS) COMMERICAL TAXES,,ERNAKULAM PIN 682 015. 4. INSPECTING ASST. COMMISSIONER ERNAKULAM AT KAKKANAD PIN 682 031. 5. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2008, THE COURT ON 19/02/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 4004 OF 2008 B ==================== Dated this the 19th day of February, 2008 J U D G M E N T The prayer sought for in this writ petition is to quash Ext.P6. 2. Ext.P6 is an order passed by the 3rd respondent on an application filed by the petitioner seeking stay of recovery of the tax due and granting stay on condition that the petitioner remits 1/3rd of the tax and furnish security for the balance tax and interest to the satisfaction of the Assessing Authority. Petitioner submits that its monthly returns were rejected and assessment was completed by Ext.P3 order of the 2nd respondent. Against this order, the petitioner filed Ext.P4 appeal and that in the meanwhile Ext.P5 recovery notice demanding payment of tax was issued. Thereupon the petitioner moved the stay application before the 3rd respondent and the 3rd respondent passed Ext.P6 conditional order of stay, which is under challenge. WPC 4004/08 :2 : 3. Learned counsel contended that the rejection of the returns and levy of tax by Ext.P3 order was wholly illegal and unjustified. It was contended that the petitioner had not sold any item at a price lower than that of which it was purchased. It was also contended that the 5th proviso to Section 11(3) of the KVAT Act had no application in the case of the petitioner. According to him, the payment of discount received did not attract any revision of input tax and hence the whole basis of the proceedings was illegal. 4. I do not think at this stage when the appellate authority is seized of the appeal in which these contentions have been urged by the petitioner, this court will be justified in considering the merits of the contentions urged by the learned counsel for the petitioner. A reading of Ext.P6 shows that these contentions were urged before the appellate authority and the appellate authority had considered those contentions. 5. At this stage, this court will be justified in going into the correctness or otherwise of Ext.P6 only on grounds available for judicial review. In my view, this order discloses that the WPC 4004/08 :3 : appellate authority had averted to the contentions raised by the petitioner and was satisfied that the petitioner had made out a prima facie case for granting a conditional stay. It is on that basis that stay has been granted on deposit of 1/3rd of the balance tax due. Ext.P6, in my view, is not vitiated for any reason warranting interference under Article 226. Writ petition therefore is only to be dismissed and I do so. However, having regard to the pendency of this writ petition before this court, I direct that the time for payment of tax and for furnishing security will stand extended till 29/2/2008. ANTONY DOMINIC,JUDGE. Rp