IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 WP(C).No. 37235 of 2010(D) --------------------------------------- PETITIONER(S): ----------------------- FIROZ K., PROPRIETOR, K.R.S.FURNITURE, PARRY HOUSE HAJIYARPALLY, MALAPPURAM. BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): -------------------------- 1. THE DEPUTY COMMISSIONR (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM - 682015. 2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, ERANAD TALUK, MANJERI MALAPPURAM DISTRICT - 676121. 3. COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, MANJERI, MALAPPURAM - 676121. R1 TO R3 BY GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.37235 of 2010 ------------------------------------------- Dated this the 17th day of December, 2010 J U D G M E N T ---------------------- Challenge is against Ext.P5 interim order issued by the 1st respondent, disposing an interlocutory application for stay filed along with Ext.P2 appeal. The petitioner had preferred statutory appeal aggrieved by Ext.P1 order of assessment, completed with respect to the year 2006-07. By the impugned order the 1st respondent had granted stay against collection of amounts due till the disposal of the appeal, subject to condition of the petitioner remitting 1/3rd of the amount and on furnishing adequate security for the balance amount, before the assessing authority. 2. According to the petitioner, the condition imposed by the appellate authority is highly rigorous and is causing onerous liability on the petitioner which is not possible to be complied with. It is contended that the condition was imposed in a quite mechanical manner, without proper application of mind. Further contention is that the grounds raised in the appeal were not considered in its proper perspective and that the merits of such contentions were not properly taken note of. W.P.(C).37235/10-D -2- 3. On a perusal of Ext.P5 it is revealed that the appellate authority had illustrated the main grounds raised in the appeal. It is further evident that the submissions made at the time of hearing of the interlocutory application was also illustrated. The order reflects proper consideration of such contentions by the appellate authority. The appellate authority found that the Intelligence Wing while conducting inspection had found out that the appellant was not maintaining proper Books of Accounts in the ordinary course of business and there was suppression of turnover. However, the appellate authority had taken note of the fact that the appellant had not produced Books of Accounts before the assessing authority and that the order was issued without verifying the Books of Accounts. Accordingly the appellate authority had arrived at a conclusion that a prima facie case was established for granting a conditional stay. 4. Contention regarding rigorous nature of the condition imposed, could not be considered by this court to interfere with an interim order issued by a statutory appellate authority. Having found that the appellant is entitled for a conditional stay, it is absolutely within the discretion of the appellate authority to fix such conditions. Merely because it is rigorous in nature or merely because the petitioner finds it difficult to comply with, interference by this court is not called for. W.P.(C).37235/10-D -3- 5. Under the above mentioned circumstances I am not agreeing with the contention of the petitioner that the impugned interim order is unsustainable in the eye of law. Hence I find no merit in the writ petition and the same is liable to be dismissed. 6. However, learned counsel appearing for the petitioner submitted that considering the stringent financial condition now experienced by the petitioner, time for compliance of the condition may be extended. Considering the fact that the petitioner was prosecuting challenges against the interim order in this writ petition, I am of the view that indulgence can be shown in permitting the petitioner to comply with the condition within a further reasonable time. 7. Accordingly, while dismissing the writ petition it is made clear that if the petitioner makes payment of 1/3rd of the amounts due under the impugned assessment, within a period of 3 (three) weeks from the date of receipt of a copy of this judgment and furnishes security for the balance amount within that time, the same shall be considered as due compliance of the interim order impugned in this writ petition. C.K.ABDUL REHIM, JUDGE. okb