IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 32294 of 2010(J) --------------------------------------- PETITIONER(S): -------------------------- NAZEER AHAMMED T.A., PROPRIETOR M/S.CRYSTAL PET & ALLIED INDUSTRIES, MAUCHIRA, CHITTUR.P.O., PALAKKAD, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SALIM AHAMMED.T.A. BY ADV. SRI.K.A.ABDUL SALAM RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAXES OFFICER, CHITTOOR, PALAKKAD, 678 001. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES DEPARTMENT, KANNUR CAMP AT ERNAKULAM, FOURTH FLOOR, SALES TAX COMPLEX, PERUMBAVUR, ERNAKULAM, 683 542. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD, 678 001. R1 TO R3 BY GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 32294 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of October, 2010 JUDGMENT Assessment pertaining to the year 2005-'06 was finalized against the petitioner, under section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), as per Ext.P1. On the basis of an inspection conducted and detection of alleged suppression, additions were made on the turnover conceded to the extent of sales and job work charges, which could not be proved through documentary evidence. Apart from such additions,three times of the turnover was added on the basis of probable suppressions and omissions. Aggrieved by the assessment, the petitioner approached the appellate authority and Ext.P4 is the interlocutory order passed on the stay petition. After adverting to the grounds raised in the appeal and after hearing the petitioner, the appellate authority granted conditional stay insisting on payment of 40% of the amount in dispute. Ext.P4 interim order of the appellate authority is W.P.(C) No. 32294/2010 2 challenged in this writ petition on the premise that the order was issued without proper consideration of the grounds and in a mechanical manner in violation of the principles of natural justice. It is contended that the appellate authority has not exercised its discretion in a proper and justifiable manner. 2. Heard learned Government Pleader appearing for the respondents. 3. On a perusal of Ext.P4 it is revealed that the appellate authority had illustrated all the grounds raised in the appeal and had considered the same on its merits. However, it is noticed that the appellate authority had observed that, addition of three times made by the assessing authority without disclosing any further evidence was not justifiable. He had further observed that the assessment is not fully justifiable. But without mentioning any reasons, the appellate authority had insisted for payment of 40% of the tax amount in dispute. 4. On evaluating order of the appellate authority, I am W.P.(C) No. 32294/2010 3 of the opinion that, even though the appellate authority had illustrated grounds raised in the appeal, there was no proper consideration of such grounds on its merits. Further the appellate authority had not mentioned any proper reasons for granting stay and for imposing condition to the extent of 40%. However, it is evident that the petitioner had established a prima facie case, which need elaborate consideration while disposing of the appeal. 5. Under such circumstances, I am of the view that the condition for payment of 40% imposed is without proper consideration and the same will cause onerous liability on the petitioner. Hence, even though I am not fully inclined to quash Ext.P4 order, the interest of justice will be served if some modification is made with respect to the condition imposed. 6. Accordingly, the writ petition is disposed of modifying Ext.P4 order to the extent of insisting the petitioner for payment of 25% of the tax amount in dispute and for furnishing security for the balance amount, within a W.P.(C) No. 32294/2010 4 period of one month from today. If such conditions are complied with, the recovery of amounts covered under Ext.P1 shall be kept in abeyance till the disposal of Ext.P2 appeal pending before the 2nd respondent. C. K. ABDUL REHIM, JUDGE. mn.