IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 31038 of 2010 (D) -------------------------- PETITIONER: ------------------- FOUR SQUARE BUILDERS (P) LTD. 48/2005 C, RMV ROAD, ELAMAKKARA, KOCHI - 682 026, REPRESENTED BY ITS MANAGING DIRECTOR SANI FRANCIS. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMA MAHESWAR RESPONDENTS: ----------------------- 1. COMMERCIAL TAX OFFICER (W.C.), ERNAKULAM. 2. INTELLIGENCE OFFICER (I.B), COMMERCIAL TAXES, ERNAKULAM. 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------- W.P(C) No.31038 of 2010-D ---------------------------- Dated this the 11th day of October, 2010. J U D G M E N T Assessment against the petitioner company with respect to the year 2004-05 was finalised through Ext.P2 order, adding 50% of the actual contract receipts towards probable omissions, based on an inspection conducted at the business place. It is revealed that the petitioner had compounded the offence by payment of compounding fee. Aggrieved by Ext.P2 order the petitioner had preferred statutory appeal before the third respondent. Ext.P4 is the interim order issued by the appellate authority disposing the stay petition filed along with the appeal. Conditional stay was granted directing the petitioner to remit 40% of the total amount due. Petitioner is challenging Ext.P4 contending that the order was issued in a mechanical manner and without proper application of mind to the grounds raised in the appeal. It is stated that eventhough the contentions were enumerated in the impugned order, no reasoning is reflected in the order for arriving at any conclusions for imposition of payment of 40% of the amount. W.P(C) No.31038 of 2010-D 2 2. On a perusal of Ext.P4, it is noticed that, the appellate authority had adverted to all the grounds raised in the appeal. The stay petition was disposed of after affording an opportunity of personal hearing. The order in question reflects consideration of the various grounds. After proper consideration of such grounds, the authority observed that sustainability of the rival contentions can be appreciated on verification of Books of Accounts and other records. Having been convinced that the petitioner was successful in establishing a prima facie case, the conditional stay was granted. I am of the considered opinion that the impugned order cannot be termed as one issued in a mechanical manner without proper application of mind. Advertance to grounds raised in the appeal and consideration of such grounds are well reflected in the order. 3. With respect to the condition imposed, I am of the opinion that it is a matter which is coming within the absolute discretion of appellate authority. Merely because such condition will work out in causing onerous liability on the petitioner or it is rigorous in nature, interference of this Court is not warranted. Therefore, I am of the opinion that Ext.P4 does not suffers from any W.P(C) No.31038 of 2010-D 3 illegality or irregularity and the writ petition deserves no merit. 4. However, learned counsel for the petitioner pointed out that, the petitioner company is having heavy financial stringency and the condition imposed has become unworkable to be complied with, in the present situation. Therefore learned counsel had appealed to this Court to consider a modification. Eventhough I am not at all inclined interfere on merits of the issue, it is only just and proper, to grant some modification to serve the ends of justice. 5. In the result, the writ petition is disposed of modifying Ext.P4 order to the extent of granting stay till the disposal of the appeal, on condition of the petitioner remitting 25% of the balance amount of tax in dispute and on furnishing security for the balance amount, within a period of two weeks from today. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab