IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 32974 of 2010(V) ----------------------------------------- PETITIONER(S): ------------------------ M/S.ASIAN PAINTS(I) LTD., 2469/G2, DEVI BUILDING, LABOUR COLONY ROAD, CHAKKARAPARAMBU, THAMMANAM PO, 682 032, REPRESENTED BY IT'S REGIONAL COMMERCIAL EXECUTIVE MR.SHAILESH KUTTAPPAN. BY ADV. SMT.K.LATHA RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA,REPRESENTED BY CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM. 2. ASSISTANT COMMISSIONER(ASSMT), SPECIAL CIRCLE-1, ERNAKULAM. 3. DEPUTY COMMISSIONER(APPEALS), COMMERCIAL TAXES, ERNAKULAM. 4. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES,KAKKANAD,ERNAKULAM. R1 TO R4 BY SR. GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.32974 of 2010 ------------------------------------------- Dated this the 29th day of October, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P4 common interim order issued by the 3rd respondent in STA.No.415 and 416 of 2010. The assessments were completed against the petitioner with respect to the year 2004-05, under the Kerala General Sales Tax Act (KGST Act) as well as under the Central Sales Tax Act (CST Act), as per Ext.P1A and P1B. The assessments were challenged before the 3rd respondent in statutory appeals filed as per Ext.P2A and P2B. Along with the appeals, interlocutory applications were filed seeking stay of collection of the disputed tax, pending disposal of the appeals. Ext.P4 is the interim order issued by the appellate authority granting conditional stay insisting payment of 60% of the total amount due and to furnish Security Bond for the balance amount. W.P.(C).32974/10- -2- 2. According to the petitioner, the condition for payment of 60% imposed through Ext.P4 is causing severe prejudice to them. It is contended that the 3rd respondent had imposed such a condition in a quite mechanical manner, without proper application of mind, and without proper advertence to the grounds raised in the appeals. Ext.P4 is assailed as an order not reflecting proper reasoning for imposing such a condition. 3. On a perusal of the impugned interim order it is revealed that an opportunity for personal hearing was afforded and the representative of the petitioner had appeared and argued the stay petitions. The 3rd respondent had illustrated all the main grounds urged in the appeals and it is stated that he had examined the contentions based on a perusal of the available records. The merit of each contention has been discussed in detail. But the appellate authority has not specifically mentioned anything about sustainability of such contentions. However, it is specifically stated by the appellate authority that on W.P.(C).32974/10- -3- consideration of the rival issues it is found that the assessing authority had completed the assessments both under the KGST Act and the CST Act based on substantial irregularities. It is observed that the appellant could establish a prima facie case for granting conditional stay. But the authority had insisted on payment of 60% of the amount in dispute. 4. The impugned order does not reflect any specific reasoning for insisting payment of 60% of the amount, pending disposal of the appeals. After observing that the appellant could establish a prima facie case, the authority has not mentioned any reasoning as to why the appellant is not entitled for an absolute stay. Going by the dictum laid by this court in Supreme Electrical Engg. (P) Ltd. Vs. Commercial Tax Officer (2008 (3) KLT 805) it is incumbent on the part of the appellate authority to mention specific reasons as to why the condition for payment of any particular amount is insisted upon and as to why the appellant is not entitled for an absolute stay. W.P.(C).32974/10- -4- 5. It was brought to my notice that an identical interim order was issued by the very same appellate authority in the case of the petitioner itself, with respect to assessment years 2000-'01 and 2002-'03. Through Ext.P6 judgment of this court the said order was interfered. The appellate authority was directed to dispose of the appeals expeditiously and the interim order of stay was modified to the extent of directing the petitioner to remit 1/3rd of the disputed liability. 6. Considering the facts and circumstances as stated above, I am of the view that instead of remitting the matter for passing fresh orders on the stay petition, the appellate authority can be directed to consider and dispose of the appeals itself, on an earlier priority. Interest of justice will be served if the interim stay is modified and a less rigorous condition is imposed. 7. Accordingly the writ petition is disposed of directing the 3rd respondent to consider and pass orders on Exts.P2A and P2B appeals after affording an opportunity of W.P.(C).32974/10- -5- hearing to the petitioner, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Ext.P4 order is modified to the extent of restraining the respondent from recovering the amount covered under Ext.P1A and P1B, which are sought to be recovered by virtue of Ext.P3A and P3B notices, subject to the condition of the petitioner remitting 1/3rd of the total amount due and on furnishing Security Bond, without sureties, for the balance amount, within a period of one month from today. C.K.ABDUL REHIM, JUDGE. okb