IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 5095 of 2011(J) ------------------------- PETITIONER(S): --------------- M/S.COCHIN WINES & DRUGS, TATAPURAM JUNCTION, COCHIN, REP. BY MANAGING PARTNER SAJEEV JOHN. BY ADV. SRI.A.KUMAR RESPONDENT(S): --------------- 1. THE DY.COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-16. 2. COMMERCIAL TAX OFFICER-1, FIRST CIRCLE, ERNAKULAM, COMMERCIAL TAXES, ERNAKULAM, COCHIN-12. BY ADV.SRI.C.K.GOVINDAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 5095 of 2011 ------------------------------- Dated this the 22nd day of February, 2011. J U D G M E N T Ext.P4 interim order issued by the first respondent while disposing the stay petition filed along with a statutory appeal instituted against the assessment completed with respect to the year 2005-06, is under challenge in this writ petition. Through the interim order, the appellate authority had granted stay, insisting upon the petitioner to make payment of 50% of the amounts due under demand and also on condition of furnishing security for the balance amount. 2. Contention of the petitioner is that, the assessment was completed by adding an equal amount of the turnover of suppression detected, towards probable omission and suppression. According to the petitioner such an addition made is highly excessive and exorbitant, and it is without any basis. The impugned order is assailed on the ground that the appellate authority had not considered the contentions in its real perspective and the condition was imposed in a 2 W.P.(C).No. 5095 of 2011 mechanical manner, without adverting to the grounds raised in the appeal. It is also contended that the calculation of gross profit, while finalising the assessment is made in an excessive manner, which was another aspect which ought to have been taken note of, while fixing the condition. 3. On a perusal of Ext.P4, I notice that all the major contention raised by the petitioner was illustrated and the appellate authority had considered such contentions. After evaluating prima facie the sustainability of such contentions, the authority found that a detailed verification of the books of accounts is necessary in order to arrive at definite conclusion. However, it was observed that the appellant was successful in establishing a prima facie case for granting conditional stay. 4. I am of the considered opinion that the impugned order could not be termed as an order passed in a mechanical manner, without application of mind. There is proper consideration of the contentions. However, it is 3 W.P.(C).No. 5095 of 2011 noticed that no specific reason is mentioned for insisting payment of 50%. 5. Learned counsel appearing for the petitioner submits that, due to some internal problems in the management of the petitioner firm, there is acute financial stringency and the rigorous condition imposed is causing onerous liability which is difficult to be complied with, at present. Under such circumstances, the petitioner seeks direction for an early disposal of the appeal and till then to restrain the recovery steps. 6. Even though I am not impressed on the merits of the contentions to interfere with Ext.P4 order, I am of the view that imposition of a less rigorous condition and a direction for disposal of the appeal on an early basis will serve the ends of justice. 7. Accordingly, this writ petition is disposed of directing the first respondent to consider and dispose of Ext.P2 appeal at the earliest possible, after affording an opportunity of hearing to the petitioner, at any rate within a 4 W.P.(C).No. 5095 of 2011 period of two months from the date of receipt of a copy of this judgment. 8. In modification of Ext.P4 order, interim stay is granted till the disposal of the appeal, on condition of the petitioner remitting 1/3rd of the amount due and on furnishing security bond for the balance amount, within two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, Judge ami/