IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 3885 of 2011(I) ------------------------------------- PETITIONER(S): ----------------------- M/S.TOC H RETREAT, 29/166, NEAR TOC H SCHOOL, TOC H ROAD, VYTTILA, REPRESENTED BY ITS MANAGING PARTNER, DR.K. VARGHESE. BY ADV. SMT.S.K.DEVI, SRI.SANTHOSH P.ABRAHAM. RESPONDENT(S): --------------------------- 1. THE COMMERCIAL TAX OFFICER (WC & LT), OFFICE OF THE DEPUTY COMMISSIONER, DEPT. OF COMMERCIAL TAXES, ERNAKULAM, KOCHI-682 015. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-682 015. 3. THE INSPECTING ASST. COMMISSIONER, DEPT. OF COMMERCIAL TAXES, ERNAKULAM, KOCHI-682 030. R1 TO R3 BY GOVT. PLEADER MR.V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 3885 of 2011 --------------------------------- Dated this the 8th day of February, 2011 JUDGMENT Aggrieved by Ext.P1 order of assessment completed with respect to the assessment year 2007-08, the petitioner had preferred Ext.P2 appeal before the 2nd respondent. Ext.P4 is the order passed by the 2nd respondent dismissing the stay petition filed along with the appeal. Petitioner is challenging Ext.P4 on the ground that dismissal of the stay petition, pending disposal of the appeal, is highly erroneous and unreasonable and that the same will defeat the appeal itself. 2. On a perusal of Ext.P4 order it is noticed that the appellate authority had meticulously gone into merits of the matter and made up its mind with respect to correctness of the assessment. All the relevant grounds raised in the appeal were considered and findings were arrived at to the effect that such contentions are devoid of merits. It is evident that the appellate authority had proceeded as if he is disposing the appeal itself. Going by the finding in Ext.P4 it is reflected that the appellate WP(C)3885/2011 2 authority had totally considered the sustainability of the grounds and arrived at conclusion regarding the merits of the case. In such case the appellate authority ought to have proceeded for disposal of the appeal itself. Dismissal of the stay application after arriving at elaborate findings regarding the merits of the appeal will definitely cause prejudice to the petitioner. 3. Under the above circumstances, I am of the view that Ext.P4 order could not be sustained. Accordingly, Ext.P4 order is hereby quashed. The 2nd respondent appellate authority is directed to consider and dispose of Ext.P2 appeal untrammelled by any of the observations contained in Ext.P4. The appeal may be disposed of as early as possible, after affording reasonable opportunity of hearing to the petitioner, at any rate within two months from the date of receipt of a copy of this judgment. 4. In order to achieve the ends of justice, it is directed that the respondent shall keep in abeyance recovery of amounts demanded under Ext.P5, till the disposal of appeal, subject to condition of the petitioner remitting 1/4th of the total amount due and on furnishing security bond for the balance amount WP(C)3885/2011 3 within two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pmn/