Petitioner challenges Ext.P10 in so far as there is a direction to pay 30% of the tax due as per the assessment order and to furnish security for the balance amount for granting stay in appeals. Ext.P10 order is passed by the Commissioner of Appeals in appeal filed by the petitioner against an assessment order passed by the commercial Tax Officer, (Works Contract), Mattancherry, in respect of assessment year 2008-09. According to the petitioner, in respect of assessment years 2006-07, 2007-08 and 2008-09 petitioner's appeals are still pending wherein they have already remitted 30% of the demand to obtain stay of further proceedings. It is submitted that these appeals are not finally disposed and since already securities are available with the department, it is not appropriate to demand further deposit of tax as per the present assessment order. It is also submitted that the petitioner is entitled for paying the tax at compounded rate and in which case the amount already deposited will be sufficient to satisfy the entire liability. W.P.(C)No.25406 OF 2014 : 2 :
2. Government Pleader opposing the above contention raised by learned counsel for the petitioner submits that the petitioner having issued Ext.P11 undertaking to comply with the directions contained in Ext.P10 cannot turn around and seek for setting aside Ext.P10. Merely by seeking time to pay by way of Ext.P11, the jurisdiction of this Court is not ousted and it is open for the petitioner to challenge Ext.P10. It is contended by the petitioner that the Appellate Authority did not considered the merits of the case while directing depositing of 30%, but has only passed a mechanical order.
3. Having regard to the facts and circumstances of the case, I am of the view that some leniency can be shown to the petitioner, especially since the petitioner's security is already available with the department in regard to the conditional orders passed in the previous years appeals. Hence Ext.P10 shall stand modified, directing the petitioner to pay Rs.4,00,000/- and to furnish security for the balance amount within a period of three weeks from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
jes A.M.SHAFFIQUE, Judge