IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 WP(C).No. 34126 of 2010(M) -------------------------- PETITIONER: -------------------- M/S.N.J.K.BUILDERS, 40/201A2-A3, SANKARASADAN, THOTTEKATTU ROAD, ERNAKULAM-682 011, REPRESENTED BY ITS DIRECTOR SRI.N.JAYAKRISHNAN. BY ADV. SMT.K.LATHA RESPONDENTS: ---------------------- 1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. ASSISTANT COMMISSIONER (WORKS CONTRACT) COMMERCIAL TAXES, ERNAKULAM-682 019. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-682 019. 4. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KAKKANAD, ERNAKULAM-682 030. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 34126 OF 2010 ------------------------------------- Dated this the 19th day of November, 2010 JUDGMENT Ext.P5 interim order of stay issued by the 3rd respondent is under challenge in this Writ Petition. Aggrieved by Ext.P1 order of assessment, the petitioner filed statutory appeal, Ext.P3, before the 3rd respondent. Ext.P5 is the order passed on stay petition filed along with the appeal. In Ext.P5, the 3rd respondent had granted stay subject to condition of the petitioner remitting 50% of the amount due and on furnishing security bond for the balance. 2. One of the main grievance voiced by the petitioner is that an amount of Rs.13,14,020/- paid by the petitioner was not given credit by the assessing authority and the 3rd respondent had imposed condition for payment of 50% without taking note of such payment. It is also contended that the condition was imposed in a 2 WP(C) No. 34126/2010 mechanical manner without proper application of mind and without proper advertence to the grounds raised in the appeal. 3. On a perusal of Ext.P5 order impugned, it is evident that the appellate authority had narrated all the main ground upon which the appeal was instituted. It reflects examination of various contentions and perusal of available records by the appellate authority. Observation is that, sustainability of the rival contentions can be appreciated only after detailed verification of records. The appellate authority had arrived at a finding that the appellant had established a prima facie case for granting conditional stay. 4. Learned Government Pleader appearing on behalf of the respondents conceded that, certain payments effected by the petitioner was not given proper credit. However the quantum of such amount was disputed. 5. I am not at all impressed by the contentions 3 WP(C) No. 34126/2010 raised in order to assail the interim order. In the case at hand the appellate authority had considered the grounds raised and evaluated whether such grounds are prima facie sustainable. The authorities had enumerated reasons touching merits of such contentions. Thereafter in exercise of the discretion vested a condition was imposed for granting interim stay. However, it is noticed that, no specific reason was mentioned as to why the petitioner is not entitled for an absolute stay. Considering the contentions of the petitioner that the assessing authority has not given credit with respect to certain payments effected, I am of the opinion that it is a matter which can be considered by the appellate authority while fixing condition for granting stay. If the petitioner could establish such payment before the appellate authority, it is for the appellate authority to take note of such payments, while fixing the condition. 6. Under such circumstances, I am of the view that 4 WP(C) No. 34126/2010 the matter need reconsideration at the hands of the 3rd respondent. Ext.P5 order is therefore quashed. The 3rd respondent is directed to pass fresh orders on the stay petition after affording a further opportunity of hearing to the petitioner. The petitioner should be provided with opportunity to produce documents in support of the claim. Fresh orders in this regard shall be issued by the 3rd respondent as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE dnc