The petitioner challenges Ext.P13, an order by which the Deputy Commissioner (Appeals) has stayed further proceedings pursuant to the demand made in respect of the years 2009-2010 and 2010-2011 under the Central Sales Tax Act and Kerala Value Added Tax Act on condition that the petitioner shall pay 30% of the demand and furnish security for the balance amount to the satisfaction of the assessing authority within a period of two weeks.
2. The main contention raised by the petitioner is that he has no obligation to pay tax as demanded and that he has produced all necessary records before the assessing authority. A reading of Ext.P13 order would indicate that the petitioner's contention was relating to the sales turnover conceded in Form 13 and 13A. It was mentioned that returns show inclusion of all the sales in other states where the dealer has branches. It is observed by the assessing authority that no evidence was produced to prove the contention at the time of hearing of the stay petition. Reference is made to first proviso to rule 60 to indicate that a dealer registered under the Act having the head office situated outside the State shall file statement of accounts in respect of the activities in the State separately along with the consolidated balance sheet and profit and loss account, if not drawn separately in the audit report. It is also observed that without examining the said documents an absolute stay cannot be granted in the absence of evidence to contradict the finding of the assessing authority.
3. Having gone through the impugned order I am of the view that the appellate authority has while exercising discretion to grant conditional stay, relied upon the factual materials in order to grant the stay.
4. The learned counsel appearing for the petitioner however would submit that 30% will come to more than Rs.1,00,00,000/- which will impose more liability on the petitioner. According to him, he has got a valid case in the appeal and if the conditional order is permitted to stand, the appellant will be put to serious hardship and it will even affect the business of the appellant.
5. Heard the learned Government Pleader as well.
6. Having regard to the aforesaid factual situation and having considered the averments in the writ petition I am of the view that there is nothing wrong in the conditional order passed by the appellate authority as stated above. However taking into account the amount involved, I am of the view that Ext.P13 order can be modified to a limited extent by permitting the petitioner to remit 20% of the demand and furnish security for the balance amount as a pre condition for granting stay.
Accordingly this writ petition is disposed of as under:
Ext.P13 order shall stand modified permitting the petitioner to pay 20% of the demand and to furnish adequate security to the satisfaction of the assessing authority for the balance amount. The petitioner is granted two months' time to pay the amount of which 50% of the amount shall be remitted within one month and the balance 50% the next month. The appellate authority shall endeavour to dispose of the appeal within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
vpv
A.M.SHAFFIQUE JUDGE