IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM FRIDAY, THE 30TH DAY OF MARCH 2012/10TH CHAITHRA 1934 WP(C).No. 33489 of 2010 (I) ---------------------------------- PETITIONER(S): ------------------- HINDUSTAN PETROLEUM CORPORATION LIMITED, COCHIN REGIONAL OFFICE, KARSHAKA ROAD ERNAKULAM, REPRESENTED BY ITS MANAGER (FINANCE) PRAKASAN I.A. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SMT.RUKHIYABI MOHD. KUNHI RESPONDENT(S): -------------------- 1. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, (ASSESSMENT I), SPECIAL CIRCLE II COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 015. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM,COCHIN-682 015. 3. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 015. BY SPL. GOVT. PLEADER SRI. JAMES SRI. SOJAN JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 33489/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2003 - 2004 (KGST) DATED 22/01/2010. P1(a):COPY OF THE RECTIFICATION ORDER FOR THE ASSESSMENT YEAR 2003 - 2004 (KGST) DATED 22/03/2010. P2: COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2004 - 2005 (KGST) DATED 25/02/2010. P3: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT (2003-04 KGST) DATED 05/04/2010. P4: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT (2004-05 KGST)DATED 05/04/2010 P5: COPY OF THE DEMAND NOTICES ISSUED BY THE 3RDRESPONDENT UNDER SECTION 7 OF THE RR ACT (AY 2003-2004 (KGST)) DATED 28/06/2010. P6: COPY OF THE DEMAND NOTICES ISSUED BY THE 3RDRESPONDENT UNDER SECTION 7 OF THE RR ACT (AY 2004-2005 (KGST)) DATED 28/06/2010. P7: COPY OF THE JUDGMENT IN WPC. NO.21707/2010 DATED 13/07/10 P8: COPY OF THE REQUISITION ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT DATED NIL. P9: COPY OF THE COVERING LETTER OFFERED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 13/10/2010. P9(a):COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY APPOLLO TYRES LTD., DATED 18/05/2010. P9(b):COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY SILEX POLYMERS DATED NIL. P9(c): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY HINDUSTAN ORGANIC CHEMICALS LTD., DATED NIL. P9(d): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY VALLABHDAS KANJI LIMITED DATED NIL. P9(e): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY E.R.C.M.P.U. LTD. VADAVATHOOR P.O., KOTTAYAM DATED NIL. svs ...........2/-.... ..2.. WPC. NO.33489/2010 P9(f): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY PERIYAR CHEMICALS DATED NIL. P9(g): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY APPOLLO TYRES LTD., DATED NIL. P9(h): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY KERALA CO- OPERATIVE MILK MARKETING FEDERATION, CATTLE FEED PLANT, ALLEPPEY DATED NIL. P9(i): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY ASHTAVAIDYAN THAIKKATTU MOOS, VAIDYARATNAM OUSHADHASALA DATED NIL. P9(j): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY PAMBA TYRES PVT. LTD., DATED NIL. P9(k): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY GANDHI GRAM RUBBERS LTD., KOTTAYAM DATED NIL. P9(l) COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY E.R.C.M.P.U. LTD., VADAVATHOOR P.O., KOTTAYAM DATED NIL. P9(m): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY NAGARJUNA HERBAL CONCENTRATES LTD. P9(n): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY T & J CORPORATION LTD., DATED NIL. P9(o): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY UNITED BREWERIES LTD., DATED 24/03/2010. P9(p): COPY OF THE ANNEXURE I CERTIFICATE ISSUED BY HINDUSTAN NEWSPRINT LTD., DATED 07/05/2010. P9(q):COPY OF THE C FORM ISSUED BY VALLIAMMAL GAS AGENCY, POLLACHI DATED 30/07/2010. P9(r):COPY OF THE C FORM ISSUED BY THUNGAPRIYA GAS SERVICE DATED NIL. P10: COPY OF THE CONDITIONAL ORDER OF STAY PASSED BY THE 2ND RESPONDENT DATED 13/10/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K. ABDUL REHIM, J. ------------------------------------------------- W.P.(c) No. 33489 OF 2010 ------------------------------------------------- DATED THIS THE 30th DAY OF MARCH, 2012 J U D G M E N T Before signing the judgment in this case, learned counsel for the petitioner had brought to my notice that another writ petition, W.P (c) No.6992/2012, filed by the petitioner, challenging the prohibitory orders of recovery issued for collection of arrears of tax, including the amount covered by the assessments for the years which are under challenge in this writ petition, is coming up for hearing. Hence this case was heard against on today, along with W.P (c) No.6992/2012, and is disposed of as follows. 2. Challenge is against Ext.P10 interim order issued by the 2nd respondent on the appeals pending before that authority, with respect to assessments under the KGST Act for the years 2003-2004 and 2004-2005. The 2nd respondent appellate authority had granted conditional stay against collection and recovery of the tax amounts due pending W.P.(c) No. 33489/2010 -2- disposal of the appeals, subject to condition of the petitioner remitting 60% of the total amounts due, and on furnishing security bond for the balance amount. 3. Various contentions are raised challenging validity of ExtP10 order. I am of the view that this court may not be justified in interfering with an interim order granting conditional stay passed by the statutory appellate authority, unless the petitioner makes out a case that there is total non-application of mind, or total non-advertence to the contentions raised in the appeal. On a perusal of Ext.P10 it is evident that the appellate authority had exercised its discretion after hearing the counsel appearing for the petitioner and after considering prima facie sustainability of the contentions raised. The appellate authority observed that the petitioner had failed to produce the required statutory declaration forms in order to substantiate their claim for payment of concessional rate of tax. It is further observed that even in the appellate stage the petitioner had not produced the statutory forms in order to substantiate W.P.(c) No. 33489/2010 -3- the claims. Under the above mentioned circumstances I am inclined to hold that the conditional order of stay granted in Ext.P10 does not warrant interference. 4. But, learned counsel for the petitioner raised contentions that, all the statutory forms are available with the petitioner and on production of the same, there is every chance of the appeals being allowed and there will be considerable reduction in the amount of tax due. He further points out that the petitioner company is a central Government undertaking, which is functioning in a most profitable manner, included as one among the 'Navarathna' companies. He further points out pendency of another writ petition WP (c) No.35483/2010, before this court wherein the question regarding conditions to be imposed while granting interim stay with respect to the petitioner company is under adjudication, in view of directions issued by the hon'ble Supreme Court. Therefore condition imposed for payment of 60% is causing hardships, is the submission. According to the petitioner if the concessional rate is W.P.(c) No. 33489/2010 -4- allowed there cannot be any liability on the part of the petitioner to make payment of the amount under demand. Therefore, he appealed for interference in varying the condition. 5. Heard; Special Government Pleader (Taxes) for the respondents. Having regard to the relevant facts and circumstances, I am of the view that even though interference on merits is not warranted, interest of justice will be achieved if an equitable relief is granted to the extent of altering the conditions stipulated in Ext.P10. 6. The writ petition is disposed of directing the 2nd respondent to consider and dispose of Exts.P3 and P4 appeals, after affording opportunity of personal 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. 7. Till such time the appeals are disposed of as directed above, in modification of the condition imposed in Ext.P10, the respondents are restrained from proceeding W.P.(c) No. 33489/2010 -5- with any steps of recovery for realising the amounts covered under the KGST assessments for the year 2003- 2004 and 2004-2005, provided the petitioner remits 25% of the amount under demand, within two weeks from today. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge