IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 21825 of 2008(W) -------------------------- PETITIONER: ------------ M/S. POONAM GRAHANIRMAN (P) LTD, MANIMADOM, AMBALAPPUZHA, REP. BY SRI. R. ANANTHA NARAYANAN, MANAGING DIRECTOR. BY ADV. SRI.E.P.GOVINDAN RESPONDENTS: ------------------ 1. THE COMMERCIAL TAX OFFICER ( W C & L.T), OFFICE OF THE DY. COMMISSIONER, COMMERICIAL TAXES, ALAPPUZHA. 2. DY. COMMISSIONER (APPEALS ), COMMERCIAL TAXES, KOLLAM. 3. INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA. 4. STATE OF KERALA REPRESENTED BY SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 21825 of 2008 -------------------------- Dated this the 24th July, 2008 J U D G M E N T Aggrieved by Exhibit-P2 order of assessment for the year 2006-2007, petitioner has preferred Exhibit-P5 appeal before the appellate authority. He also moved an application for stay which was directed to be considered by the appellate authority, as per Exhibit-P9 judgment. Petitioner points out that as per Exhibit-P7 orders of assessment for the earlier years, petitioner is entitled to Q refund of approximately an amount of Rs.4,17,000/-. Exhibit-P8 - application for refund was directed to be considered by the assessing authority, as per Exhibit- P9 judgment. But orders are yet to be passed thereon. 2. In the meanwhile, pursuant to the directions in Exhibit-P9 judgment, the appellate authority considered the application for stay and passed Exhibit-P10 order, which reads as follows: Steps for collection of balance tax due for the return period 2006-07 are W.P ( C) No. 21825 of 2008 2 stayed till the disposal of the appeal subject to the condition that the appellant pays 35% of the balance tax due within three weeks from the date of receipt of this order. The appellant should also furnish adequate security for the balance amount to the satisfaction of the assessing authority. If any of the condition is not fulfilled stay granted will automatically vacate. 3. The assessee has been directed to pay 35% of the balance tax due , as a condition for stay of recovery of the balance disputed tax. This is under challenge in this writ petition. Admittedly orders are yet to be passed on the application for refund submitted by the petitioner. 4. Learned Government Pleader submits that an application in the nature of Exhibit-P8 is not on the files of the assessing authority. This is refuted by the learned counsel for the petitioner. But as a matter of fact, it cannot be disputed that going by Exhibit-P7 orders of assessment there is excess payment of tax by the petitioner. In the result, I am of the view that condition imposed under Exhibit-P10 seems to be onerous. It is appropriate that the appellate authority disposes of the appeal, at the earliest. W.P ( C) No. 21825 of 2008 3 Accordingly, the writ petition is disposed of directing the 2nd respondent to consider and pass orders on Exhibit- P5 appeal within a period of three months from the date of receipt of a copy of this judgment. In the meanwhile, if the petitioner pays an amount of Rs.1.5 lakhs within a period of three weeks from today and furnishes security for the balance tax disputed in Exhibit-P5 appeal, such payment shall be treated as due compliance with the directions contained in Exhibit-P10 order. (V.GIRI, JUDGE) ma W.P ( C) No. 21825 of 2008 4 W.P ( C) No. 21825 of 2008 5