IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 31969 of 2010(U) -------------------------- PETITIONER: ------------------ P. NATARAJAN, RAJAN CASHEW COMPANY, MARANADU, EZHUKONE, KOLLAM. BY ADVS. SRI.N.D.PREMACHANDRAN SMT.LALIZA.T.Y. RESPONDENTS: ---------------------- 1. THE ASSISTANT COMMISSIONER COMMERCIAL TAXES, SPECIAL CIRCLE, KOLLAM AT KOTTARAKKARA. 2. THE DEPUTY COMMISIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. 3. THE APPELLATE TRIBUNAL, UNDER KERALA VALUE ADDED TAX ACT, THIRUVANANTHAPURAM. 4. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOTTARAKKARA, KOLLAM. BY SENIOR GOVT. PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 31969 OF 2010 ------------------------------------ Dated this the 19th day of October, 2010 JUDGMENT Petitioner is a registered dealer under the Kerala General Sales Tax Act (KGST Act) and Central Sales Tax Act (CST Act), engaged in processing raw cashew nuts and exporting cashew kernels. Assessments for the years 2005-06 and 2006-07 were finalised against the petitioner as per Ext.P2, P6 and P10 orders. Claims of the petitioner for exemption based on C Forms, F Forms, and H Forms were rejected assigning the reason that on verification through the online system (Tax Information Exchange system) such declarations were not found to be valid. Aggrieved by Exts.P2, P6 and P10, the petitioner had preferred appeals before the second respondent through Exts.P3, P7 and P11. Those appeals were dismissed by the 1st appellate authority. Aggrieved by orders of the first appellate authority, the petitioner 2 WP(C) No. 31969/2010 preferred further appeals before the 3rd respondent Tribunal as per Exts.P4, P8 and P12. Exts.P5, P9 and P13 are the stay petitions filed along with the appeals. The Tribunal had considered those stay petitions and issued Exts.18 to P20 interim orders granting stay subject to the condition of the petitioner paying part of the amounts covered under the impugned assessments. 2. According to learned counsel for the petitioner notarised copies of all the declaration forms were produced before the assessing authority and certificates obtained from the respective assessing authorities regarding genuineness of such declarations were also produced at the time when the appeals were heard by the first appellate authority. It is further submitted that notarised copies of such documents were also produced before the Tribunal along with a petition to accept the same, as evidenced from Exts.14 and P15. Contention of the petitioner is that if the declaration forms are accepted, there will not be any 3 WP(C) No. 31969/2010 liability and the appeals are liable to be allowed. 3. Exts.P18 to P20 orders are challenged on the premise that the appellate Tribunal had failed to look into such records and none of the grounds raised in the appeal memorandum has been adverted to by the Tribunal. Learned counsel contended that the dictum laid by this Court and by the Hon'ble Supreme Court in the matter of passing interlocutory orders on stay petitions has not been taken note of while issuing the impugned orders. It is contended that the impugned orders are issued by the appellate tribunal in a mechanical and highly cryptical manner without advertance to the grounds raised in the appeal. 4. On a perusal of Exts.P18 to P20 orders, it is noticed that the said orders does not reflect proper application of mind by the Tribunal with respect to the various grounds raised in the appeals. The contentions raised by the petitioner was not reiterated and it is not 4 WP(C) No. 31969/2010 discernible from those orders as to whether the Tribunal had considered such contentions. On the other hand the tribunal only observed that in the light of the contentions advanced it is felt that a debatable case warranting interference has been established and therefore a conditional stay can be granted to meet the ends of justice. 5. It is settled law by this time that, any statutory appellate authority while passing interim orders granting stay, is bound to take note of all the grounds raised in the appeal and on considering such grounds the authority concerned should arrive at a conclusions regarding sustainability of such grounds on a prima facie basis. It is further settled that interim orders issued by the appellate authorities should reflect proper application of mind and consideration of the grounds raised in the appeal. As stated above, going by the tenor of Exts.P18 to P20 orders, such a consideration by the appellate tribunal is not reflected therein. 5 WP(C) No. 31969/2010 6. Under the above circumstances, I am of the opinion that Exts.P18 to P20 are not sustainable in the eye of law and hence they are liable to be quashed. 7. Therefore, the Writ Petition is allowed and Exts.P18 to P20 are hereby quashed. The 3rd respondent Tribunal is directed to pass fresh orders on Exts.P5, P9 and P13 stay petitions, after proper advertance to the grounds raised in the respective appeals and also after taking note of Exts.P14 to P15 petitions through which documents in support of such grounds are produced. Fresh orders in this regard shall be issued after affording an opportunity of hearing to the petitioner at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 8. It is brought to my notice by learned counsel appearing for the petitioner that the appeals itself are posted for hearing before the Tribunal on 23.11.2010. It is left to the tribunal to adopt the course of disposal of the 6 WP(C) No. 31969/2010 appeals itself, if it is ripe for hearing. 9. Till orders are passed by the Tribunal as directed above, recovery of amounts covered under Exts.P2, P6 and P10 orders of assessments shall be kept in abeyance. 10. The petitioner will produce a copy of this judgment before the Tribunal. C.K. ABDUL REHIM JUDGE dnc