IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).No. 6596 of 2011(Y) -------------------------------------- PETITIONER(S): ----------------------- M/S.KEMLOGIC LABCARE (P) LIMITED, KALABHAVAN ROAD, NEAR TOWN HALL, KOCHI-18, REPRESENTED BY ITS DIRECTOR BOBAN M.JOSEPH, AGED 45 YEARS, S/O.M.U. JOSEPH. BY ADV. SRI.FRANKUR D.JAYAN, SMT.BOBY M.SEKHAR. RESPONDENT(S): -------------------------- 1. THE ASSISTANT COMMISSIONER (ASSESSMENT) SPECIAL CIRCLE-1, ERNAKULAM, THEVARA P.O., COCHIN-16. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM, THEVARA P.O., COCHIN-16. 3. COMMERCIAL TAX OFFICER, REVENUE RECOVERY, ERNAKULAM, THEVARA P.O., COCHIN-16. R1 TO R3 BY SR. GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.6596 of 2011 ------------------------------------------- Dated this the 3rd day of March, 2011 J U D G M E N T ---------------------- Interim order issued by the appellate authority under Ext.P7 is challenged in this writ petition. Against the assessment finalised with respect to the year 2007-'08 under Ext.P1, the petitioner had preferred statutory appeal before the 2nd respondent as per Ext.P3. Along with the appeal the petitioner had filed Ext.P4 stay petition and impugned order Ext.P7 was issued by the 2nd respondent disposing the stay petition. 2. The 2nd respondent had granted interim stay subject to condition of the petitioner remitting 50% of the total amount due and on furnishing Security Bond for the balance amount. According to the petitioner, the condition was imposed in a mechanical manner without advertence to the grounds raised in the appeal and without properly appreciating the contentions raised at the time of hearing. It is also contended that the impugned order is passed in a cryptic manner, without mentioning any reason for imposition of such condition. 3. On a perusal of Ext.P2 it is revealed that the main contention raised by the petitioner is that, the best judgment assessment is completed solely because of the reason that there is difference between the interstate purchase and the stock receipt W.P.(C).6596/11 -2- as per the audited report and the annual return filed. According to the petitioner, the difference occurred only because a particular machinery sent for replacement in lieu of a defected machine was not included in the stock of the petitioner. But, when the machine was sent to the principal of the petitioner it was mistakenly included in the stock transfer. However, it is noticed that the appellate authority while considering the above contentions observed that the petitioner had explained the reason for difference before the assessing authority and produced documents before that authority. But it is stated that the assessing authority had considered the matter and finalised the assessment. It is further observed by the appellate authority that the petitioner could establish a prima facie case for granting conditional stay. But nothing is revealed in Ext.P7 to the effect as to why condition for payment of 50% of the amount should be insisted. 4. In a recent decision of this court in Supreme Electrical Engg. (P) Ltd. Vs. Commercial Tax Officer (2008 (3) KLT 805) it is held that the appellate authorities, while fixing condition for granting interim stay, are expected to mention reasons as to why the appellants are not entitled for a complete stay or rather the reason for fixing quantum of condition to be imposed need be explained. In the case at hand, I am of the view that proper appreciation of the contentions and independent W.P.(C).6596/11 -3- appreciation of its merit is lacking. So also, there is no reason mentioned for imposition of the condition, to the extent of 50%. 5. Under the above circumstances, I am of the view that Ext.P7 order is unsustainable in the eye of law. However, instead of remanding the matter for passing fresh orders I am of the view that interest of justice will be served if a direction is issued to the appellate authority to dispose of the appeal on an early basis and till then to stay the recovery steps subject to imposition of a condition of less rigorous in nature. 6. Therefore the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P3 appeal, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. 7. Till such time appeal is disposed of, in modification of Ext.P7 order, the respondents are directed to refrain from realising amounts covered under Ext.P1, which is now initiated pursuant to Ext.P6, subject to condition of the petitioner remitting 25% of the amounts due and on furnishing Security Bond for the balance amount, within two weeks from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb