IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 28673 of 2010(H) ---------------------------------- PETITIONER(S): ------------------- P.NARGIS, AGED 48 YEARS, W/O.HIATHALI, PROPRIETOR, S.M.DISTRIBUTORS, POWER HOUSE ROAD, THIRUVANANTHAPURAM, RESIDING AT T.C.38/1368, POWER HOUSE ROAD, THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.PRATHAP PILLAI SRI.RAFEEK. V.K. RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.-695 001. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, THIRUVANANTHAPURAM.-695 001. 3. THE COMMERCIAL TAX OFFICER, II CIRCLE, THIRUVANANTHAPURAM.-695 001. R1 TO R3 BY GOVT.PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 28673 OF 2010 ------------------------------------ Dated this the 16th day of September, 2010 JUDGMENT Ext.P3 order passed by the second respondent appellate authority is under challenge in this Writ Petition. Against Ext.P1 order of assessment a statutory appeal was filed before the second respondent as per Ext.P2. Pending disposal of the appeal stay against collection of tax amount in dispute was sought for. Ext.P3 is the order passed on the stay application. 2. In Ext.P3, the petitioner was directed to make payment of 50% of the disputed tax and interest due thereon, and to furnish adequate security with respect to the balance amount. According to the petitioner, the appellate authority having been found that a prima facie case was established, could not have insisted for payment for 50% of the tax amount as well as the interest. It is also contended that insistence for furnishing adequate security with respect to the balance amount is also creating 2 WP(C) No. 28673/2010 problem. 3. The order in question is one issued by a statutory appellate authority exercising its discretion in granting interim relief pending disposal of an appeal. Unless such orders are highly cryptic or one issued without application of mind or without advertence to the contentions raised in the appeal, no interference in exercise of jurisdiction under Article 226 is proper and justifiable. Going by contents of Ext.P3, it is evident that the appellate authority had elaborately considered almost all the contentions raised in the appeal. Having found that a prima facie case has been established a conditional stay was granted. The question as to whether the condition imposed is onerous or rigorous is also not a matter arising for consideration in a Writ Petition. Therefore on the merits of the contentions an interference with the impugned order is not at all warranted. 4. However, learned counsel for the petitioner points out that a major portion of amount due pertains to interest and insistence for payment 50% tax amount as well as 3 WP(C) No. 28673/2010 interest will work out to an onerous liability which he will find impossible to comply with. Further, the direction for instances to furnish adequate security will lead to difficulties since the assessing authority will insist on furnishing Bank Guarantee on that account. Considering the above contentions, in exercise of equity, I am inclined to order slight modification with respect to the conditions imposed under Ext.P3. 5. Under the above circumstances, while dismissing the Writ Petition, a partial modification of the conditions stipulated in Ext.P3 is allowed, to the extent of insisting payment of only 1/3rd of the tax amount and interest in dispute and furnishing of Security Bond, without sureties, for the balance amount. Time for compliance of the above conditions will stand extended for a period of one month from today. C.K. ABDUL REHIM JUDGE dnc