IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 1240 of 2011(D) ------------------------------ PETITIONER(S): --------------- DEVAMATHA VANITHA CHARITABLE SOCIETY 1/791,NAMBIAR ROAD,PUTHUR,THRISSUR. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------- 1. DEPUTY COMMISSIONER(APPEALS), ERNAKULAM-016. 2. COMMERCIAL TAX OFFICER-I,IST CIRCLE, COMMERCIAL TAXES,THRISSUR-680 001. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J ---------------------------- W.P.(C).NO.1240 OF 2011 ----------------------------------- Dated this the 17th day of January, 2011 JUDGMENT Challenge in this writ petition is against Ext.P7 interim order passed by the first respondent appellate authority. Assessments were finalized against the petitioner with respect to the years 2008-2009 to 2010-2011 under Ext.P1, P1(a), P1(b) orders. Penalty under Section 67(1) was also imposed against the petitioner with respect to the above years, as per Ext.P2, P2 (a) and P2(b) orders. Aggrieved by the orders of assessment and orders of penalty, the petitioner had filed statutory appeals before the 1st respondent. Along with the appeals petitions seeking stay were also filed. In Ext.P7 order the 1st respondent had granted interim stay imposing a condition on the petitioner to make payment of 50% of the total amount due and to furnish adequate security for the balance amount in any of the forms stipulated under Rule 19(12) of the KVAT Rules. 2. According to the petitioner the condition in Ext.P7 order was imposed in a mechanical manner without proper application W.P.(C).NO.1240 OF 2011 2 of mind. It is stated that, the issue on the merits, relates to classification of the product manufactured by the petitioner, as to whether it is an Inverter or a 'UPS'. According to the petitioner the predominant use of the product in question is as 'UPS' which is taxable at 4%. But the assessing authority found that it is Inverter which can also be used as 'UPS', and is chargeable at 12.5%. Contention of the petitioner is that, at any rate, since the issue pertains to disputed classification of the goods, imposition of penalty was totally unwarranted and unsustainable. It is the case of the petitioner that the appellate authority while imposing the condition had failed to advert the contentions raised in the appeal in its proper perspective. On the other hand the condition was imposed in a mechanical manner, is the contention. 3. On a perusal of the impugned order, I notice that all the main contentions raised by the appellant were illustrated and considered by the appellate authority. However, it is pertinent to note that the appellate authority had merely observed that a prima facie case was established for granting conditional stay. No specific reason is mentioned as to why the petitioner is not entitled for an absolute stay or as to why he should be instituted W.P.(C).NO.1240 OF 2011 3 for payment of 50% of both the assessment as well as penalty. Going by the dictum laid by this Court in a recent decision of a Division Bench in Supreme Electrical Engineering (P) Ltd. v Commercial Tax Officer 2008 (3) KLT 805, it is evident that the appellate authorities are at an obligation to specify reasons for imposing conditions. I am not satisfied that Ext.P7 is an order which reflects proper considerations on the aspect of imposition of the condition. 4. Under the above mentioned circumstances, I am of the view that, the matter needs reconsideration by the appellate authority. But I feel that interest of justice will be served if instead of remanding the matter for fresh orders, the appellate authority is directed to consider and dispose of the appeals itself on an early basis. 5. Accordingly, the writ petition is disposed of directing the 1st respondent to consider and dispose of Ext.P3 and P4 series appeals as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Till such time the appeals are disposed of, in modification of Ext.P7 order interim stay is granted against collection and W.P.(C).NO.1240 OF 2011 4 recovery of the amounts, subject to the condition of the petitioner remitting 50% of the total amount covered under Ext.P1, P1(a) and P1(b) orders of assessments and furnishes security bond with respect to balance 50% and also for the amounts covered under Ext.P2, P2(a) and P2(b) orders. The condition as stated above shall be complied within two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pm