IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 3824 of 2011(C) ------------------------- PETITIONER(S): --------------- AGASTIN ABRAHAM, APEX MARKETING,CC-32/21-A1, PUTHIYA ROAD PALARIVATTOM,KOCHI-25 (REPRESENTED BY P.A.HOLDER SRI SOBY.M) ERAPPAKATTU (H), MATTEPPITTIL,KOORALI P.O.,KOTTAYAM BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, ERNAKUALM 2. DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. PIN-682015 3. INSPECTING ASST.COMMISSIONER, ERNAKULAM AT KAKKANAD PIN-682031 4. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-PIN-695001 BY SR.GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.3824 of 2011-C ---------------------------------------- Dated this the 9th day of February, 2011. J U D G M E N T Interim order passed by the 2nd respondent appellate authority while disposing a stay petition filed along with an appeal, which is instituted against an order imposing penalty under Section 67(1), is under challenge in this writ petition. 2. The penalty was imposed alleging non-filing of return for the month of March 2010 as well as for non- payment of tax due for the said month. Contention of the petitioner is that, eventhough belatedly, the return was filed and tax amount was paid on 13.4.2010. It is the further contention that the penalty order was communicated on 30.5.2010, only after filing of the return and payment of tax. Therefore the imposition of penalty was totally unwarranted, is the contention. It is also the case of the petitioner that by virtue of the return filed it is evident that, the tax liability due for the relevant month is considerably W.P(C) No.3824 of 2011-C 2 low when compared with, the estimate made for the purpose of imposing penalty. 3. In the impugned order, Ext.P5, the appellate authority had granted interim stay, subject to condition of the petitioner remitting 20% of the amount of penalty demanded and on furnishing security bond for the balance amount. It is revealed from Ext.P5 that the appellate authority had gone deep into the grounds raised in the appeal and also the contention urged at the time of hearing. The appellate authority found that the petitioner had failed to file return and to pay tax within the time stipulated under the Act. Eventhough it was taken note of that payment was made subsequently, the appellate authority observed that the assessing authority had imposed penalty on substantial grounds. However, being convinced that there exists a primafacie case, which need be looked into, interim stay was granted subject to condition on payment of 20%. 4. On an evaluation of the order impugned, I am of the view that it does not suffer from any illegality or infirmity. The order in question could not be termed as one W.P(C) No.3824 of 2011-C 3 issued without application of mind and without advertance to the contentions raised. The condition imposed could not be termed as unreasonable or arbitrary in any manner. On the other hand imposition of such a condition is always left to the discretion of the appellate authority. Under such circumstances, I find no merit to interfere with Ext.P5. Hence the writ petition fails and the same is dismissed accordingly. 5. However, learned counsel for the petitioner made an appeal to this Court to extent the time stipulated for compliance of the condition, considering the fact that the writ petition was pending before this Court. I make it clear that if the petitioner complies with the conditions stipulated in Ext.P5, within a period of two weeks from the date of receipt of a copy of this judgment, the same shall be considered as due compliance of the conditions stipulated in Ext.P5. C.K.ABDUL REHIM JUDGE ab