IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 28184 of 2010(W) --------------------------------------- PETITIONER: ------------------- M/S.RAJ ELECTRICALS & ENGINEERING INDUSTRIES, XXXIX/5185, PARAMBITHARA ROAD, COCHIN-682 036, REPRESENTED BY ITS PROPRIETOR, K.P.RAJAN. BY ADV. SRI.K.J.ABRAHAM. RESPONDENTS: ------------------------ 1. THE COMMERCIAL TAX OFFICER, KVAT CIRCLE IV, ERNAKULAM. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASST.COMMISSIONER, COMMERCIAL TAXES, KAKKANAD, ERNAKULAM. R1 TO R3 BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. -------------------------------------- W.P.(C).No.28184 of 2010 -------------------------------------- Dated this the 13th day of September, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P4 interlocutory order issued on a stay petition filed before the statutory appellate authority. Aggrieved by Ext.P1 order of assessment finalised under Section 25 of the Kerala Value Added Tax Act, 2003 (KVAT Act), the petitioner had preferred appeal before the 2nd respondent, as evidenced by Ext.P2. Ext.P2(a) is the stay petition filed along with the appeal. After affording an opportunity of hearing to the petitioner, Ext.P4 interim stay was granted, on condition of payment of 50% of tax amount in dispute. 2. According to the petitioner there is serious dispute with respect to the rate of tax applicable. It is contended that the assessing authority had imposed 12.5% tax on 50% of the items and 4% tax on the remaining 50%. It is contended that the assessment was made pursuant to an inspection wherein suppression of turnover was detected, W.P.(C).28184/10 -2- only with respect to items which are taxable at 4%. It is further contended that the detection of suppression was at the fag end of the financial year concerned and additions on the basis of such suppression for the entire period of the assessment year, is highly unreasonable and unjustifiable. 3. However, this court is not justified in looking into merits of the contentions which need be appreciated while disposing the appeal by the statutory appellate authority. For the purpose of issuing interim order, it is revealed from Ext.P4, that the appellate authority had adverted to all the contentions raised in the appeal. It is evident that after adverting to such contentions and on proper application of mind, the appellate authority had arrived at a conclusion that a prima facie case has been established. Imposition of a condition for granting stay, is a matter which comes absolutely within the discretion of the appellate authority. The impugned order cannot be termed as one issued without application of mind or without advertence to the contentions, or even it could not be termed as a non-speaking order. Hence, it is not proper for this court to interfere with the condition imposed while granting the stay. Therefore the writ petition deserves no merit and the same is liable to be dismissed. W.P.(C).28184/10 -3- 4. However, learned counsel for the petitioner submitted that considering the present financial situations it is impossible for the petitioner to comply with the conditions. Hence he is seeking further time. Having considered the facts and circumstances, it is made clear that if the petitioner complies with the conditions stipulated in Ext.P4 order within a period of one month from today, the same shall be treated as proper compliance. The writ petition is dismissed subject to the above observations. C.K.ABDUL REHIM, JUDGE. okb