IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 W.A.No. 1828 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.13591/2008 DATED 25/04/2008 .................... APPELLANT/PETITIONER: ------------------------------------- RAMLA BEEVI, PROPRIETRIX, EVEREST BAKERY, AGED 58 YEARS, SEENATH MANZIL, ELAMPALLOOR, KUNDARA.P.O, KOLLAM. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. ASSISTANT COMMISSIONER (AA), AUDIT ASSESSMENT, KOLLAM. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, KOLLAM. 3. DEPUTY TAHSILDAR (RR), KOLLAM. 4. THE VILLAGE OFFICER, ELAMPALLOOR, KOLLAM DISTRICT. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- W.A.No.1828 of 2008 ------------------------------------------ Dated, this the 24th day of September, 2008 JUDGMENT H.L.Dattu, C.J. The assessee is a dealer registered under the provisions of the Kerala Value Added Tax Act ('the Act' for short). (2) The assessments have been completed for the assessment year 2005-06. (3) Aggrieved by the said assessment order, the assessee has preferred first appeal before the first appellate authority and has also filed an application for grant of an interim order. During the pendency of the appeal, the respondents have taken effective steps to recover the amounts due from the petitioner pursuant to the orders of assessment passed for the assessment year 2005-06. (4) Aggrieved by the said revenue recovery proceedings, the petitioner was before this Court, inter alia, requesting this Court to restrain the respondents from recovering any amount from the petitioner during the pendency of the appeal. (5) The learned Single Judge, may be taking note of the financial difficulties pleaded by the petitioner and her serious ailment, has thought it fit to direct the assessee to deposit only one-third of the disputed W.A.No.1828256 of 2008 2 tax. Further, the learned Judge has directed the first appellate authority to dispose of the appeal within three months from the date of making the payment as directed in the order. (6) Being aggrieved by the orders and directions so issued by the learned Single Judge, the petitioner is before us in this writ appeal. (7) Smt.Meera V.Menon, learned counsel appearing for the appellant, would inform us that the assessee is suffering from serious ailment and, therefore, we should direct the first appellate authority not to insist upon the appellant for payment as directed by the learned Single Judge, but to dispose of the appeal filed by the appellant. (8) We are not prepared to accept the submission made by the learned counsel for the appellant. If for any reason, the authorities under the Act have initiated effective proceedings to recover the amount due pursuant to the order of assessment for the assessment year 2005-06, it was expected of the assessee to request the first appellate authority before whom the application for grant of stay is pending to consider that application and pass appropriate orders. However, the assessee has chosen to approach this Court being aggrieved by the revenue recovery proceedings, without even a request to the first appellate authority to dispose of the application filed by her for grant of an interim order. W.A.No.1828256 of 2008 3 (9) The learned Single Judge, as we have already noticed, taking into consideration the financial difficulties pleaded by the appellant and also the serious ailment that the assessee is suffering, has thought it fit to direct the assessee to deposit one-third of the disputed tax. (10) In our view, the orders passed by the learned Single Judge can neither be characterised as arbitrary nor capricious nor mala fide. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE vns