IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH MAY 2010 / 21ST VAISAKHA 1932 WP(C).No. 14532 of 2010(N) -------------------------- PETITIONER(S): --------------- EXCEL TRADING AGENCY (KERALA), 8/241, BEACH HOTEL CAMPUS, SILK STREET, CALICUT-673 032, REPRESENTED BY VINOD.N. BY ADV. SRI.MADHU RADHAKRISHNAN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, IST CIRCLE, KOZHIKODE. 2. THE DEPUTY COMMISSIONER (APPEALS), DEPT. OF COMMERCIAL TAXES, KOZHIKODE. 3. SALES TAX OFFICER (RECOVERY), O/O. DEPUTY COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, KOZHIKODE-6. GOVT.PLEADER (TAXES) SRI.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 14532 OF 2010 -------------------------------------------- Dated this the 11th day of May, 2010 JUDGMENT The petitioner is an assessee under the Kerala Value Added Tax Act (for short 'the Act' only) on the rolls of the Commercial Tax Officer, Kozhikode. Aggrieved by the Ext.P3 assessment order passed by the first respondent for the year 2008-09 under Section 25 of the Act, the petitioner has filed Ext.P5 appeal before the second respondent along with Ext.P6 stay petition. The grievance of the petitioner is that pending decision on Ext.P5 appeal as also Ext.P6 stay petition, Ext.P7 demand notice has been issued to the petitioner by the third respondent, for recovery of the amount based on Ext.P3. In this Writ Petition, the petitioner seeks a direction to the second respondent to consider Ext.P6 stay petition and also to keep in abeyance all further proceedings pursuant to Ext.P7 demand notice, till such decision. 2. The petitioner has submitted Ext.P5 appeal against Ext.P3 assessment order. The said appeal is still pending before the second respondent and, indisputably, the second respondent is competent to pass W.P.(C) NO.14532/2010 2 interim order, as sought for, during the pendency of the appeal. When an authority is clothed with a power and when a concerned person approaches that authority inviting invocation of that power, the authority has to exercise the power. Admittedly, Ext.P6 stay petition has been filed in Ext.P5 appeal and no orders have been passed thereon, so far. It is in the meanwhile that Ext.P7 demand notice has been issued for recovering the amount assessed as per Ext.P3. 3. In the circumstances, this Writ Petition is disposed of with a direction to the second respondent to consider and pass orders on Ext.P6 stay petition filed by the petitioner, in Ext.P5 appeal, expeditiously, at any rate, within a period of one month from today after affording the petitioner a reasonable opportunity of being heard. Till an order, as directed above, is passed on Ext.P6 stay petition, all further proceedings pursuant to Ext.P7 demand notice issued under Section 7 of the Revenue Recovery Act for realisation of the amount based on Ext.P3 shall be kept in abeyance. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.14532/2010 3 C.T. RAVIKUMAR, J. W.P.(C). NO.14532 /2010 JUDGMENT 11th May, 2010 W.P.(C) NO.14532/2010 4