IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 32892 of 2010(J) -------------------------- PETITIONER ---------------- M/S H & R JOHNSON (INDIA) LTD, (A DIVISION OF PRISM CEMENT LIMITED W.E.F.3-3-2010), P.T.USHA ROAD, ERNAKULAM REPRESENTED BY IT'S ASST. ACCOUNTS MANAGER, ` SRI.M.UNNIKRSHNAN. BY ADV. SMT.K.LATHA RESPONDENTS: --------------------- 1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM 695001. 2. ASSISTANT COMMISSIONER,SPECIAL CIRCLE-1, ERNAKULAM 682016. 3. DEPUTY COMMISSIONER(APPEALS),COMMERCIAL TAXES,ERNAKULAM 682 016. 4. INSPECTING ASSITANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KAKKANAD, ERNAKULAM 682 030. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 32892 OF 2010 ------------------------------------ Dated this the 29th day of October, 2010 JUDGMENT Aggrieved by Ext.P2 order of assessment completed with respect to the year 2005-06, the petitioner had preferred appeal before the 3rd respondent as per Ext.P5. Ext.P7 is the order issued by the 3rd respondent disposing the stay petition filed along with the appeal. A conditional stay was granted insisting upon the petitioner for payment of 60% of the total amount due. This Writ Petition is filed challenging Ext.P7. 2. Since the matter is pending consideration and disposal before the statutory appellate authority, it is not proper for this Court to look into merits of the grounds raised in the appeal. However, on perusal of Ext.P7 it is evident that the appellate authority had adverted to all such grounds while granting interim relief. After illustrating all the grounds, the appellate authority had specifically considered merits of each such ground and it was observed that the 2 WP(C) No. 32892/2010 assessment was completed based on substantial legal and factual reasons. However it was further observed that the sustainability of the contentions raised in the appeal need appreciation on verification of the books of accounts and other documents. Having been satisfied that the petitioner had established a prima facie case, conditional stay was granted insisting upon the petitioner to make payment of 60% of the total amount due. 3. I am of the considered opinion that the appellate authority had applied its mind and considered all the grounds raised in the appeal. With respect to the extent of the condition imposed, it is a matter coming within the absolute description of the authority. Merely because the condition imposed is rigorous in nature and such condition is causing onerous liability on the petitioner, interference by this Court is not at all warranted. 4. However, learned counsel for the petitioner 3 WP(C) No. 32892/2010 pointed out that considering the present financial situation of the petitioner company, and also considering the huge liability involved the payment of 60% of the amount it will become unworkable. It is also submitted that the petitioner has got a fair far chance of getting the appeal allowed and that considerable deduction in the liability is expected. Hence the petitioner makes an appeal for indulgence in modifying the condition imposed. 5. Under the above circumstances, while declining interference against Ext.P7 order, I am of the opinion that modification with respect to the condition imposed can be granted in order to meet the ends of justice. 6. Therefore the Writ Petition is disposed of modifying Ext.P7 order to the extent of the condition imposed therein. If the petitioner remits 1/3rd of the amount of tax in dispute and furnishes security bond for the balance amount, within a period of one month from today, then collection and recovery of amounts covered 4 WP(C) No. 32892/2010 under Ext.P2 order, which is now initiated pursuant to Ext.P6 notice, shall be kept in abeyance till the disposal of the appeal. C.K. ABDUL REHIM JUDGE dnc