IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 20156 of 2010(T) -------------------------- PETITIONER(S): --------------- MR.AHAMMEDKUNHI K.P., PROPRIETOR, M/S.R.K.BUILDERS AND INDUSTRIES, PADIVATTOM, EDAPPALLY, COCHIN - 24. BY ADV. SRI.SOJAN JAMES RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER, (WORKS CONTRACT), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM - 18. 2. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. BY GOVT. PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ------------------------------- W.P.(C) No.20156 of 2010 ------------------------------- Dated this the 29th day of June, 2010 J U D G M E N T The petitioner is challenging the correctness or sustainability of Ext.P7 interim order passed by the Appellate Authority second respondent, whereby, the petitioner has been required to satisfy 50% of the disputed liability and to furnish security for the balance amount, so as to avail the benefit of interim stay during the pendency of the appeal. 2. The learned counsel appearing for the petitioner submits that the petitioner has raised very vital grounds in Exts.P3 and P4 appeals preferred before the second respondent, pointing out the unsustainability of the inference arrived at by the assessing authority in passing Exts.P1 and P2 assessment orders, which are stated as per se wrong and illegal. It is stated that a specific contention was raised with reference to the course pursued by the assessing authority, taking the figures in respect of the 'opening work in progress', which could have been only in respect of the previous assessment year and not in respect of the W.P.(C) No.20156/2010 2 concerned assessment year. The learned counsel submits that the assessing authority ought to have reckoned only the 'closing work in progress' in respect of the assessment year, and this difference itself will contribute to an extent of nearly Rs.15 lakhs. The next contention raised by the learned counsel is with regard to the adoption of flat rate of '12.5%', in spite of the fact that the various elements involved in the works contract are exigible to tax only at the rate of 4%. There is dispute with regard to some other aspects as well. The learned counsel submits that, in spite of raising specific grounds in this regard, they have not been considered by the appellate authority while passing Ext.P7 order, which in turn, is under challenge in this Writ Petition. 3. The learned Government Pleader submits that the case projected by the petitioner has very much been taken note of in Ext.P7, including the reliance placed on the judicial precedents, and it was after considering the facts and figures, that the appellate authority observed that the petitioner had to satisfy 50% of the disputed liability and to furnish security for W.P.(C) No.20156/2010 3 the balance amount, so as to avail the benefit of interim stay, which is stated as in conformity with law and is not assailable under any circumstance. 4. Going by the materials on record, this Court finds that the specific grounds raised by the petitioner have not been properly considered by the appellate authority while passing Ext.P7 order. Since the contentions raised as above are having a direct bearing with regard to the fate of the appeal, necessarily a discussion ought to have been made, at the time of considering the IA for stay as well. Considering the particular facts and circumstances, this Court finds that the appellate authority be directed to consider and finalise the appeals, in accordance with law, at the earliest. 5. In the circumstances, the second respondent is directed to consider and pass final orders on Exts.P3 and P4 appeals, in accordance with law, within a period of two months from the date of receipt of a copy of this judgment. Petitioner W.P.(C) No.20156/2010 4 will continue to have the benefit of interim stay till finalisation of the proceedings, as above, on condition that the petitioner satisfies 25% of the total disputed liability, by way of 'two' equal instalments, the first of which shall be effected within 10 days from today, and the next within one week thereafter, and furnishes security for the balance amount. The Writ Petition is disposed of as above. P.R.RAMACHANDRA MENON, JUDGE. nj.