IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 31737 of 2011(N) ----------------------------------------- PETITIONER(S): ------------------------ M/S.DEVICES DISTRIBUTORS, K.T. COMPLEX, JAIL ROAD, CALICUT-673 004, REPRESENTED BY ITS MANAGING PARTNER SRI.P.C. FRANCIS. BY ADV. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR. RESPONDENT(S): -------------------------- 1. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-I, COMMERCIAL TAXES, KOZHIKODE-673 004. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOZHIKODE-673 004. BY GOVT. PLEADER SMT.SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 31737 of 2011(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOSTAT COPY OF THE ASSESSMENT ORDER NO.32110290314/05-06, DATED 28.06.2011. EXT.P2 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY SVM ASSOCIATES, CHARTERED ACCOUNTANTS, CALICUT, DATED 03.03.2011. EXT.P3 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIOnER BEFORE THE 2ND RESPONDENT, DATED 13TH JULY, 2011. EXT.P4 TRUE PHOTOCOPY OF THE STAY PETITION, DATED NIL. EXT.P5 TRUE PHOTOSTAT COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE SALES TAX OFFICER (RECOVERY) DATED 20TH AUGUST,2011. EXT.P6 TRUE PHOTOSTAT COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C) NO.24156 OF 2011, DATED 6TH SEPTEMBER, 2011. EXT.P7 TRUE PHOTOSTAT COPY OF THE ORDER NO.SP.154/2011 IN VATA 829/11, DATED 16.11.2011 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S.SIRI JAGAN, J. ================== W.P.(C).No. 31737 of 2011 ================== Dated this the 29th day of November, 2011 J U D G M E N T The petitioner challenges Ext.P7 order passed by the 2nd respondent-appellate authority in a stay petition filed along with an appeal filed by the petitioner under the Kerala Value Added Tax Act, against Ext.P1 assessment order, whereby the petitioner had been directed to pay an amount of ` 6,50,000/- as a condition for stay. According to the petitioner, prima facie merits of the case have not been considered by the appellate authority while passing the impugned order. He further points out that the tax assessed is only ` 7,58,970/- and, therefore, the condition to pay ` 6,50,000/- out of ` 7,58,970/- is onerous. Therefore, Ext.P7 is liable to be set aside, is his contention. 2. The learned Government Pleader points out that in the assessment order itself the total amount assessed including interest payable by the petitioner is ` 12,37,121/- and, therefore, the amount now directed to be in Ext.P7 comes to only about 50% of the amount demanded. 3. I have considered the rival contentions in detail. 4. I agree with the learned Government Pleader. On going through Ext.P7, I find that the appellate authority has considered the stay petition in its right perspective. As rightly pointed out by the w.p.c.31737/11 - : 2 :- learned Government Pleader, the amount directed to be paid as per Ext.P7 is only roughly 50% of the total demand insofar as the amount demanded as per Ext.P1 is ` 12,37,121/- which, of course, includes statutory interest. For the purpose of grant of stay, the petitioner is not entitled to exclude interest as of right. When the appellate authority decided to fix the amount to be paid as a condition for stay inclusive of interest, the same cannot be stated to be onerous or unreasonable. In the above circumstances, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge