IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 31375 of 2010(V) -------------------------- PETITIONER: ------------------ M/S.KOHINOOR DISTRIBUTORS, PULIKKAL COMPLEX, PULLEPPADY ROAD,ERNAKULAM, A REGISTERED PARTNERSHIP FIRM, REP.BY ITS PARTNER SRI.NIYAS AHEAMMAD. BY ADVS. SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENTS: ---------------------- 1. THE COMMERCIAL TAX OFFICER, IIND CIRCLE, COMMERCIAL TAXES, ERNAKULAM 682016 2. THE DEPUTY COMMISSIONER(APPEALS) COMMERCIAL TAXES, ERNAKULAM 682016 3. THE STATE OF KERALA REP.BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 695001.. BY GOVERNMENT PLEADER, SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J ---------------------------------------- W.P(C) No.31375 of 2010-V ---------------------------------------- Dated this the 15th day of October, 2010. J U D G M E N T Conditions stipulated in Ext.P6 interim order issued by the second respondent on a stay petition filed along with a statutory appeal is under challenge in this writ petition. It is not proper for this Court in a normal circumstances to interfere with the conditions imposed while granting interim stay, unless the order is highly cryptic and in cases were it does not reflect proper application of mind. 2. Going by Ext.P6 it is revealed that the appellate authority had adverted to the grounds raised in the appeal and considered sustainability of such grounds. After being convinced that the contentions need total appreciation on verification of Books of Accounts and that the petitioner had established a prima facie case, a conditional stay was granted, insisting upon the petitioner to pay 60% of the tax amount in dispute and to furnish security for the balance amount. W.P(C) No.31375 of 2010-V 2 3. The matter arises out of an assessment completed under Section 21(5) of the KVAT Act. Ext.P1 is the order of assessment, which will indicate that the proposal notice sent to the partner of the firm was returned unserved . But it is mentioned that, later the said partner appeared in person and received the notice. But nothing is stated as to whether he had filed any objection to the notice. Learned counsel for the petitioner submits that the business remained closed and the proposal notice sent in the residential address of the partner was not received by him. But when he came to know about the notice, which was returned by postal authorities, he appeared before the first respondent and a copy of the notice was served on him. At that time he requested for a short time to file objections. But the assessment was completed without granting an opportunity to file objections, is the contention. 4. In Ext.P6 order of the appellate authority also, it is admitted that the assessment was finalised without there W.P(C) No.31375 of 2010-V 3 being any objections filed by the assessee. The main contention of the petitioner seems to be that the purchase suppression as well as sales suppression alleged is not true and correct and the entire transaction is covered by the Books of Accounts. 5. Considering the above circumstances, eventhough I am of the opinion that Ext.P6 order does not warrant interference, I am inclined to observe that the condition for payment of 60% imposed thereon will cause onerous liability on the petitioner. Under such circumstances, interest of justice will be served if the appellate authority is directed to consider and dispose of the appeal at the earliest and a modification regarding the condition imposed under Ext.P6 is granted. 6. Accordingly, the writ petition is disposed of directing the second respondent to consider and dispose of Ext.P5 appeal as early as possible, at any rate within a period of two months from the date of receipt of a copy of W.P(C) No.31375 of 2010-V 4 this judgment. Ext.P6 order is modified to the extent of the condition imposed for payment of 60%. If the petitioner remits an amount equivalent to 1/4th of the tax amount in dispute and furnishes security for the balance amount, the recovery shall be kept in abeyance till the disposal of the appeal. C.K.ABDUL REHIM JUDGE ab