IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 W.A.No.566 of 2008 --------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).4144/2008 DATED 05/02/2008 .................... APPELLANT/PETITIONER:- -------------------------------------- M/S.WINTEX POLYMERS & MARBLES, PAYYANNUR - 670 307, REPRESENTED BY ITS MANAGING PARTNER, MOHAMMED IQBAL. BY ADV. SMT.SHAMEENA SALAHUDHEEN RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. THE COMMERCIAL TAX OFFICER (AA), DEPARTMENT OF COMMERCIAL TAXES, KANNUR - 670 002. 2. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, KOZHIKODE - 673 011. 3. THE DEPUTY TAHSILDAR (RR), TALIPARAMBA - 670 141. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & K.M.Joseph,J. ----------------------------------------------- W.A.No.566 of 2008 ----------------------------------------------- Dated, this the 10th day of March, 2008 JUDGMENT H.L.Dattu,C.J. This Writ Appeal is filed against the orders passed by the learned Single Judge in W.P.(C).No.4144 of 2008 dated 5.2.2008. 2. By the impugned order, the learned Single Judge has granted time to the appellant-petitioner to deposit 50% of the disputed tax. Further, the learned Single Judge has directed the petitioner to furnish security for the balance amount to the satisfaction of the assessing authority. 3. Petitioner is a dealer registered under the provisions of the Kerala Value Added Tax Act (“Act” for short). It is claimed in the writ petition that the petitioner is very regular in paying taxes due under the Act. It is further stated that because of the loss in the business, the petitioner has not paid the taxes due under the Act for the assessment year 2006-07. 4. Aggrieved by the orders of assessment passed for the assessment year in question, the assessee has filed an appeal before the first appellate authority. An application for stay is also filed along with that appeal. 5. The first appellate authority, while considering the application filed for grant of stay, by order dated 17.1.2008 has stayed the recovery proceedings for the assessment year 2006-07 subject to the petitioner depositing 50% of the tax demanded and for the balance amount, to furnish security to the satisfaction of the assessing authority. 6. Aggrieved by the orders so passed by the first appellate authority, the appellant is before this Court in W.P.(C).No.4144 of 2008. The learned Single Judge, while disposing of the writ petition, has practically W.A.No.566 of 2008 - 2 - confirmed the orders passed by the first appellate authority. Aggrieved by the said order passed by the learned Single Judge, the petitioner is before us in this appeal. 7. The learned counsel appearing for the appellant reiterates the contentions canvassed in the writ petition and also in the appeal. The learned counsel appearing for the appellant would contend that the appellant was regular in paying taxes due under the Act and that because of the loss in the business, he could not pay the taxes for the assessment year in question. 8. Taking into consideration the facts pleaded by the appellant, we feel, if the appellant is directed to pay 50% of the tax due as ordered by the first appellate authority and delete the other direction issued by the first appellate authority to furnish security for the balance amount, it would not cause any prejudice to the respondents. 9. Accordingly, we pass the following: Order i) The Writ Appeal is allowed in part. ii) The appellant shall deposit 50% of the tax due as directed by the first appellate authority within a week's time from today, since the appellant has already taken a Demand Draft for the said amount. iii) In so far as the second condition with regard to furnishing of security is concerned, the same is deleted for the present. iv) This order shall not be treated as a precedent in any other case. Ordered accordingly. H.L.Dattu Chief Justice K.M.Joseph vku/- Judge