IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 19997 of 2009(T) ---------------------------------------- PETITIONER(S): ------------------------ M.K.JOSEPH, JMK DISTRIBUTORS, VAZHICHERY, ALAPPUZHA. BY ADVS. MR.C.A.SADASIVAN, MR.S.ABU BAKER KUNJU, MR.JOY P.JOSE, MR.RAMAN JANARDHANAN, MR.C.G.RADHAKRISHNA PILLAI, MR.SOJAN MATHEW. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES) TRIVANDRUM. 2. COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, IIND CIRCLE, ALAPPUZHA. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. BY GOVERNMENT PLEADER MR. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 19997 OF 2009 ......................................................................... Dated this the 22nd July, 2009 J U D G M E N T The petitioner is aggrieved of the condition imposed by the appellate authority vide Ext. P12 interim order whereby the petitioner has been directed to remit 1/3rd of the amount due so as to avail the benefit of interim stay granted on 07.07.2009 during the pendency of the statutory appeal. 2. The learned Counsel for the petitioner submits that even though a notice was issued to the petitioner to produce the relevant books of accounts in respect of the assessment year 2005-06, the same could not be complied with, since the mother of the petitioner was laid up due to serious ailments. The learned Counsel further submits that the petitioner is very much ready to produce the relevant books of accounts and that if the same is perused, the petitioner earnestly believes that the respondents will have to refund a sum of Rs.65,000/- to the W.P.(C) No. 19997 OF 2009 2 petitioner . 3. The learned Government Pleader appearing on behalf of the respondents submits that adequate opportunity has already been extended to the petitioner in connection with the assessment proceedings as borne by the materials on record. It is also brought to the notice of this Court that in response to the notice dated 17.12.2008 issued by the assessing officer, the petitioner had submitted Ext.P7 representation dated 29.12.2008 stating that his mother was laid up and the only request therein was that the petitioner might be granted three months' time to produce the books of accounts; which was granted. Thereafter, the petitioner was directed to produce the books of accounts as per Ext. P6 notice dated 20.03.2009, but the petitioner did not pay any heed to this and no books of accounts were produced, which led to Ext. P8 assessment order. It appears that Ext. P8 order was passed on 13.04.2009 as per the reference made in Ext.P9 demand notice. The petitioner has also approached the appellate authority by filing necessary appeal, along with petition for stay and it was after considering the facts and figures that the W.P.(C) No. 19997 OF 2009 3 appellate authority chose to pass Ext. P12 order granting interim stay, directing the petitioner to pay 1/3rd of the demand made. 4. However, the appellate authority though has made a reference to the fact that the purchase bills were produced before the appellate authority, it has been observed that the correctness of the input tax credit availed as per the returns can be ascertained only after verifying the entire purchase bills; however adding that the petitioner has made out a prima facie case for conditional stay. 5. Taking note of the contentions raised from the part of the petitioner, the extent of the amount ordered to be satisfied appears to be on the higher side and in the said circumstances, the same is hereby modified and the petitioner is directed to remit a sum of Rs. One lakh within a period of two weeks and on such an event, the third respondent shall consider and pass appropriate orders on the appeal preferred by the petitioner in accordance with law. The petitioner shall also be given an opportunity to produce the relevant records to substantiate his W.P.(C) No. 19997 OF 2009 4 case. Final orders shall be passed as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of the judgment. Subject to the above, all further coercive steps stated as being pursued against the petitioner shall be kept in abeyance till such orders are passed on the statutory appeal. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk