IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 30826 of 2008(T) -------------------------- PETITIONER(S): --------------- SMT. ANNIE GEORGE, AGED 52 YEARS, W/O.GEORGE, PROPRIETOR M/S. DHANYA GRANITES, OORAKKADE, KIZHAKKAMBALAM. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, ERNAKULAM. 4. THE ASSISTANT COMMISSIONER (AUDIT ASSMT) DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT MINI CIVIL STATION, ALUVA. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 30826 OF 2008 T ```````````````````````````````````````````````````` Dated this the 21st day of October, 2008 J U D G M E N T Petitioner challenges Ext.P8. Ext.P8 is the order passed granting stay of collection of balance amount for 2005-06 and 2006-07 on condition that the petitioner remits 40% of the amount due for both years under assessment as well as penalty and furnishes sufficient security for the balance amount. The central issue to be decided is whether the petitioner has used primary crusher in both the years. On the one hand, he points out that the primary crusher was not working and on the other hand, learned Government Pleader points out that the primary crusher was working. In Ext.P8 order, the appellate authority has taken note of the Engineer's certificate that the machinery is not functioning and then the authority feels that interference is warranted in certain aspects of the case and then he has proceeded to pass the order as aforesaid. Petitioner relies on Exts.P1, P2 and P3. Ext.P1 is a certificate issued by one Issac's Engineering Works wherein it is stated that the person, who has WPC.30826/08 : 2 : issued the certificate, has been looking after the maintenance of crusher plants of Dhanya Granites for the last five years and no primary crushers are working in this unit during the period and it is also stated that an old obsolete outer body of a primary machine remaining in this site is irreparable which has no motor or any other functioning machine parts. The petitioner relies on Ext.P2, the details of electricity bills for 2005-06 and 2006-07. 2. Having considered the facts and having heard the counsel for the parties, I feel that the contention relating to the payment of tax for the years must be retained. It may not be just to call upon the petitioner to pay penalty also at the same rate of tax. Accordingly, writ petition is partly allowed and Ext.P9 to the extent the petitioner is called upon to deposit 40% of the penalty for both the years is quashed and it is ordered that instead it suffices that the petitioner pays 40% of the tax for both the years and 20% of the penalty for both the years. Time is granted by one month from today to comply with the orders. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE