IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).No. 6217 of 2011(B) -------------------------------------- PETITIONER(S): ----------------------- DENCY JOHN, THOPPIL HOUSE, OLIVUMALA, CHUNDALE, WAYANAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE-673 001. 3. THE COMMERCIAL TAX OFFICER, V.A.T. CIRCLE, KALPETTA, WAYANAD-673 121. R1 TO R3 BY SR. GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 6217 of 2011 ------------------------------- Dated this the 3rd day of March, 2011. J U D G M E N T Against Ext.P2 order of assessment, the petitioner had filed Ext.P3 statutory appeal before the second respondent. It is stated that along with the appeal an application seeking stay was also filed before the second respondent. Grievance of the petitioner is that without considering pendency of the statutory appeal, recovery steps have now been initiated on the basis of Ext.P2(a) demand raised. 2. It is contended by the petitioner that the impugned order of assessment was issued solely based on a penalty proceeding initiated against the petitioner. Penalty was imposed under section 67(1) of the Kerala Value Added Tax Act, on the basis that certain materials were received from the boarder check post to the effect that the petitioner had conducted transport of goods which were not declared in the books of accounts. It is pointed out that against the order imposing penalty, the petitioner had filed appeal before the 2 W.P.(C).No. 6217 of 2011 second respondent himself and the said appeal was heard as early as on 19.11.2010. When steps were initiated for recovery of the amount of penalty, the petitioner had approached this Court on an earlier occasion by filing W.P. (C) No.2278 of 2011. The said writ petition was disposed of by this Court on 24.1.2011 directing the second respondent to pass orders on the appeal filed against order imposing penalty, on the basis of the hearing already conducted. Recovery of amounts of penalty was stayed till passing of the orders on the appeal. 3. Contention of the petitioner is that, if the appeal filed against the order imposing penalty was disposed of, there is a fair chance of the appellate authority quashing the order of assessment. Therefore, the petitioner seeks a direction to the appellate authority for disposal of Ext.P3 appeal, taking note of the orders, if any which will be passed in the appeal filed against the penalty order. The petitioner also seeks stay of recovery of the amounts covered under the order of assessment, till the disposal of 3 W.P.(C).No. 6217 of 2011 the appeal. 4. Considering the facts and circumstances as stated above, I am of the view that it is for the appellate authority to look into the merits of the matter and to take appropriate decision regarding granting of interim relief. Therefore, I am of the view that the writ petition can be disposed of directing the appellate authority to consider the matter and to take appropriate decision. 5. Accordingly, the writ petition is disposed of directing the second respondent to consider and pass orders on the stay petition filed along with Ext.P3 appeal, after taking note of the order which will be issued in the appeal filed against the penalty order, and in view of the direction issued by this Court on W.P.(C)No.2278 of 2011, at the earliest possible, at any rate within a period of 6 weeks from the date of receipt of a copy of this judgment. 6. Till such time orders are passed by the second respondent as directed above, recovery of amounts covered under Ext.P2 order of assessment and Ext.P2(a) 4 W.P.(C).No. 6217 of 2011 notice of demand, shall be kept in abeyance. 7. The petitioner will produce a copy of this judgment before the second respondent. C.K.ABDUL REHIM, Judge ami/