IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 27042 of 2009(A) -------------------------- PETITIONER: --------------- M/S.ESQUIRE INN, PANCHAJANYAM HOSPITALITIES, CHARUMOODU, MAVELIKKARA, REPRESENTED BY CHERISH RAJ, PARTNER. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENTS: --------------- 1. INTELLIGENCE OFFICER, SQUAD NO.I, DEPT. OF COMMERCIAL TAXES, ALAPPUZHA. 2. INTELLIGENCE OFFICER, SQUAD NO.II, DEPT. OF COMMERCIAL TAXES, ALAPPUZHA AT CHENGANNUR. 3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (APPEALS), KOLLAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------------ W.P(C). No.27042 of 2009 ------------------------------------- Dated this the 25th day of September, 2009 JUDGMENT Challenge in this Writ Petition is against Exts.P5 and P6 interim orders issued by the 3rd respondent on stay petitions filed along with Exts.P3 and P4 appeals, arising out of Exts.P1 and P2 orders imposing penalty. By the impugned orders, the appellate authority while granting interim stay had imposed condition for payment of 50% of the amount in dispute and for furnishing proper security for the balance amount. 2. The orders of penalty were issued pursuant to an inspection conducted at the business place of the petitioner, which is a Bar Hotel. During the inspection, 103 bills were recovered and on the basis of average sale value of 13 bills, gross profit is worked out at 54% on the entire turnover. But the gross profit disclosed by the petitioner was 31.8% only. The main ground raised in the appeals is that, the method adopted by the authority in working out gross profit of 54% on the entire turnover is not realistic. The rate of gross profit alleged is only the average gross profit in respect of 13 bills recovered, which W.P(C). No.27042 of 2009 2 was arrived at by taking purchase value of 60 ml of those items and sale value of the items covered in the sales of two days, in 13 bills out of the 103 bills. It is contended that eventhough the appellate authority while considering the interlocutory application had adverted to the above contentions, he has not considered merits of such contentions and without there being any reasoning, condition for payment of 50% was imposed in a quite mechanical manner. Hence it is contended that the orders suffers from defect of non-application of mind and non- advertence to the contentions in its real perspective. 3. On a perusal of Exts.P5 and P6, it is noticed that after elaborating the contentions, the appellate authority had observed that the appellant had made out a prima facie case for conditional stay. But without mentioning any reason, quite mechanically, the condition for payment of 50% is imposed. Considering various parameters prescribed through different precedents of this Court and the Honourable apex Court, the impugned orders cannot be considered as one issued after proper application of mind and after proper advertence to the grounds and contentions raised in the appeals. Hence I am inclined to interfere with the orders. W.P(C). No.27042 of 2009 3 4. However, considering the fact that suppression of turnover is alleged while imposing penalty, the matter needs elaborate adjudication in the appeals. Therefore it is only just and proper to direct the appellate authority to have disposal of the appeals as early as possible, and to impose reasonable condition for granting stay till then. 5. In the result, the Writ Petition is disposed of directing the 3rd respondent to consider and dispose of Exts.P3 and P4 appeals as early as possible after affording opportunity of hearing to the petitioner, at any rate within a period of two months from the date of receipt of a copy of this judgment. The respondents are directed to keep in abeyance all further steps for realisation of the amount covered under Exts.P1 and P2 orders of penalty till the disposal of the appeals, on condition that the petitioner makes deposit of an amount equivalent to 25% of the penalty within a period of three weeks from today and also on furnishing proper security for the balance amount. C.K.ABDUL REHIM JUDGE rtr/-