IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 27880 of 2009(D) -------------------------- PETITIONER(S): --------------- M/S.ARYA BHANGI, GANDHINAGAR, KOCHI, REPRESENTED BY ITS MANAGING PARTNER, JIBI THOMAS. BY ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN RESPONDENT(S): --------------- 1. THE DY.COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 2. THE COMMERCIAL TAX OFFICER (AUDIT AND ASSESSMENT) KVAT, COMMERCIAL TAXES, THEVARA, ERNAKULAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.27880 OF 2009 ------------------------------ Dated this the 6th day of October, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against the condition imposed in Ext.P4 interlocutory order passed by the appellate authority, the 1st respondent. Petitioner had preferred Ext.P2 appeal against Ext.P1 order of assessment before the 1st respondent. Along with the appeal Ext.P3 stay application was also filed. Ext.P4 is the order issued by the appellate authority on the stay petition. 2. Contention of the petitioner is that the assessment is made mainly on rejecting the claim for exemption based on stock transfer, and that the petitioner has got convincing evidence to prove that the exemption claimed was genuine. According to the petitioner, the appellate authority, after having considered various contentions raised in the appeal, was convinced of the fact that petitioner has got prima facie case to grant stay. It is further contended that, the appellate authority while passing the interim order has failed to consider the fact that if credit of input tax is allowed the liability will be much less. Therefore the contention is that the insistence for payment of an amount of W.P.(C).27880/09-D 2 Rs.2,50,000/- ordered in Ext.P4 is unreasonable and unjustifiable. 3. on a perusal of Ext.P4 it is noticed that the appellate authority had gone through the contentions raised in the appeal and also verified the documents produced in support. The appellate authority found that the stock transfer are supported by relevant documents. With respect to various contentions raised and explanations offered by the appellant, it is observed that the matter need verification in detail. The findings of the appellate authority is to the effect that the assessment needs interference in certain areas. But the same can be made only during the stage of final hearing of the appeal. After having convinced that there is prima facie case established, the appellate authority had imposed a condition for payment of an amount of Rs.2,50,000/- for granting stay. It is evident from Ext.P1 demand notice that the total dues pertaining to the assessment in dispute is more than Rs.10 lakhs. 4. The appellate authority had imposed the condition in exercise of its discretion, after having found that the appellant had established a prima facie case. I do not find any illegality or infirmity with the interlocutory order issued by the 1st respondent imposing such a condition. The insistence for payment of a part of the disputed tax, pending disposal of the W.P.(C).27880/09-D 3 appeal, comes within the purview of discretion of the appellate authority. In this case the discretion was exercised by the appellate authority with proper application of mind and with due advertence to the contentions raised. Therefore it is highly improper for this court to interfere with the condition, since the appeal in question itself is pending disposal. In the result the writ petition is devoid of merit and the same is accordingly dismissed. 5. However at the request of the learned counsel for the petitioner I am inclined to extend the time limit stipulated for payment in Ext.P4. Accordingly the time limit prescribed for payment in Ext.P4 is hereby extended for 3(three) weeks from today. C.K.ABDUL REHIM, JUDGE. okb