IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 21415 of 2010(B) -------------------------- PETITIONER: --------------- M/S.NAGARJUNA CONSTRUCTION CO.LTD., G-183, PANAMPILLY NAGAR, KOCHI - 36, REPRESENTED BY ITS GENERAL MANAGER, MR.SHAJU MATHEW. BY ADV. SMT.K.LATHA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASST.COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER ADV. MR. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 21415 OF 2010 ......................................................................... Dated this the 9th July, 2010 J U D G M E N T Challenging Ext.P1 assessment order for the assessment year 2007-08 and Ext. P1(a) in respect of assessment year 2008-09, the petitioner has preferred Exts. P2 and P2A appeals along with necessary stay petitions. After considering the interlocutory applications for stay, the second respondent passed Ext. P4 order whereby the petitioner has been directed to satisfy 1/3rd of the due amount and to furnish security bond for the balance amount within two weeks, so as to avail the benefit of interim stay during the pendency of the appeals, sustainability of which is under challenge in this Writ Petition. 2. The learned Government Pleader appearing for the respondents submits that Ext. P4 order passed by the second respondent is very much a speaking order and the contentions raised by the petitioner have been specifically taken note of as observed in the penultimate paragraph of Ext. P4 order which reads as follows: W.P.(C) No. 21415 OF 2010 2 “I have considered the various contentions raised by the learned representative and also perused the available records. For both the years 2007-08 and 2008-09 the assessing authority has completed the assessment under section 25(1) more or less based on same grounds. Even though the appellant has claimed complete exemption for the works executed in SEZ area according to the assessing authority no evidence has been produced to prove the same. The appellant has failed to produce Form 43 or any other documents in order to prove that the works were executed at the SEZ area or sub contract awarded by the appellant, the appellant has failed to produce Form 20H in order to claim exemption on the same. The assessing authority has assessed a portion of turnover at the rate of 12.5 % since transfer of works executed is in the form of goods. In the appellate stage the appellant is of the contention that the appellant is able to prove the exemptiion by producing Form 43 declaration so also the appellant is having evidence for sub contract awarded by him and appellant further contended that Form H can be W.P.(C) No. 21415 OF 2010 3 produced at any time in order to get turnover exemption on the sub contract. Thus the appellant has able to establisb a prima facie case for conditional stay in the circumstances the following order is issued.” 3. The learned Counsel for the petitioner submits that the petitioner has obtained all the requisite documents and reliance is also placed on Exts. P5 and P6 as well as on the observation by the assessing authority in Ext.P4 that the petitioner had offered to produce all the documents at any time . The learned Counsel for the petitioner submits that the petitioner might be given an opportunity to substantiate the position with reference to the said documents before any condition is imposed upon the petitioner. 4. After hearing both the sides, this Court finds that the matter requires to be re-considered by the second respondent in the light of the relevant documents stated as in possession of the petitioner. Accordingly, Ext. P4 is set aside. The petitioner is permitted to produce all the documents before the second W.P.(C) No. 21415 OF 2010 4 respondent and the second respondent is directed to take up the interlocutory applications for stay and pass orders thereon afresh, in accordance with law and also with reference to the specific documents directed to be produced by the petitioner, which shall be finalised as expeditiously as possible at any rate within one month from the date of receipt of a copy of the judgment . It is also made clear that the petitioner shall appear in person before the second respondent on 20.07.2010 for production of the documents as above and to have the date of hearing fixed accordingly. Till such fresh orders are passed in the applications for stay as above, all coercive proceedings being pursued against the petitioner shall be kept in abeyance for the time being . The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk