IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 27066 of 2009(C) -------------------------- PETITIONER : --------------- BPL TELECOM PVT.LTD, SYSTEMS HOUSE, KOOTTUPATHA, PALAKKAD, REP.BY ITS COMPANY SECRETARY SRI.D.KRISHNAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY (TAXES)GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. ASSISTANT COMMISSIONER(ASSESSMENT), SPECIAL CIRCLE, PALAKKAD. 4. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (APPEALS), ERNAKULAM. 5. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PALAKKAD. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------------ W.P(C). No.27066 of 2009 ------------------------------------- Dated this the 25th day of September, 2009 JUDGMENT Against assessment of Sales Tax pertaining to the years 2005-'06 to 2008-'09, the petitioner had filed appeals before the 4th respondent, along with interlocutory applications seeking stay of realisation of the amount in dispute pending disposal of the appeals. The 4th respondent had considered the interlocutory applications and issued a common order Ext.P9, whereby the stay petitions were dismissed. The petitioner is challenging Ext.P9 interlocutory order. 2. Contention of the petitioner is that while hearing the stay petitions, the 4th respondent had elaborately considered the grounds of appeals and contentions raised by the petitioner. After adverting to rival contentions, the appellate authority, in fact, had entered into finding on merits of such contentions, as if she is deciding the appeal itself. According to the petitioner, the authority had failed to consider whether the petitioner could establish any prima facie case. The financial hardships met with by the assessee, for payment of the disputed amount has not W.P(C). No.27066 of 2009 2 been taken note of by the authority. On the other hand, without any basis the authority observed that the appellant had failed in establishing by prima facie case even for granting conditional stay. The order issued in this regard had virtually resulted in discarding the entire contentions in appeals itself, is the submission. 3. On a perusal of the impugned order Ext.P9, it is noticed that the grounds raised in the appeals were elaborately considered on merits, even without affording an opportunity to the appellant to substantiate such grounds on the basis of documents and other materials. Such an elaborate consideration of the contentions in the appeal was not expected at the time of the disposal of the stay petitions. Merely because the assessee could not substantiate such claim on the basis of documents and other materials at the time when stay petitions were heard, the appellate authority was not supposed to refuse stay holding that the appeals do not merit consideration. 4. Under the above circumstances having considered the entire facts and circumstances and also taking note of the financial hardships met with by the assessee, I am of the opinion that this Writ petition can be disposed of with direction to the W.P(C). No.27066 of 2009 3 appellate authority to consider and dispose of the appeals on an early date, and till then to grant a conditional stay. 5. Accordingly Ext.P9 is hereby quashed. The 4th respondent is directed to consider and dispose of the appeals filed by the petitioner with respect to the assessment years stated above, as early as possible, after affording an opportunity of hearing to the petitioner, at any rate - within a period of two months from the date of receipt of a copy of this judgment. The respondents are directed to keep in abeyance all steps for realisation of the amounts covered under the impugned assessments challenged in the appeals (Ext.P3 series), till the disposal of the appeals, on condition that the petitioner makes payment of 25% of the amounts covered under those assessments, within a period of three weeks from today, and further furnishes security for the balance amount. The Writ Petition is disposed as above. C.K.ABDUL REHIM JUDGE rtr/-