IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 18935 of 2010() ------------------------- PETITIONER: --------------- P.SHAHUL HAMEE, NICE MEDICALS, 15/619, NEAR DISTRICT HOSPITAL NEW BLOCK, MANJERI. BY ADV. MR. N.MURALEEDHARAN NAIR MR. T.G.ABHILASH RESPONDENTS: --------------- 1. COMMERCIAL TAX OFFICER, MANJERI. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM AT MANJERI. BY SENIOR GOVERNMENT PLEADER MR. C. K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 18935 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 22nd day of June, 2010 JUDGMENT Challenging Exts. P1 and P2 orders imposing penalty upon the petitioner, the petitioner has filed Ext.P3 and P4 appeals, along with Exts. P5 and P6 petitions for stay. After considering Exts. P5 and P6, the appellate authority has passed Ext.P7 common order, whereby 50% of the disputed amount has been ordered to be paid, so as to avail the interim stay during pendency of the appeal. 2. The learned counsel for the petitioner submits that, the course pursued by the appellate authority is not correct or sustainable, for the reason that the transaction involved does not attract any tax at all 3. The learned Government Pleader appearing for the respondents submits that, the course pursued by the concerned authority is perfectly in conformity with the relevant provisions of law, particularly since the assessee is very much liable to file the returns as prescribed under Section 20 (1) of the KVAT Act and the failure in this regard rather stands conceded. The case projected by the petitioner is that the matter was entrusted to an accountant and it was because of the failure on the part of the accountant that the returns could not be filed on time, for which the petitioner may not be penalized. 4. After hearing both the sides and considering the persuasive W.P. (C) No. 18935 of 2010 : 2 : submissions made by the learned counsel for the petitioner, this Court finds that the explanation offered by the petitioner as to the failure to file the returns ought to have been properly weighed by the appellate authority, in the light of the actual tax liability, if any. This being the position, the liability now cast upon the shoulders of the petitioner, to satisfy 50 % of the penalty is rather onerous. In any view of the matter, this Court finds it fit and proper to permit the petitioner to have the benefit of interim stay, on condition that, the petitioner deposits a sum of Rs.50,000/- (in stead of 50% as ordered in Ext. P7) and furnish security for the balance amount forthwith, at any rate, within 10 days form the date of receipt of a copy of the judgment, before the appellate authority. On such event, the 3rd respondent shall consider and finalize Exts. P3 and P4 appeals, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed. P. R. RAMACHANDRA MENON, JUDGE kmd