IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 29969 of 2010(U) ---------------------------------------- PETITIONER(S): ------------------------ CHACKO ANTONY, PROPRIETOR, M/S.BLUE STAR AGENCIES, NEAR FIRE STATION, CHANGANACHERRY. BY ADVS. SRI.JOMY GEORGE, SRI.M.J.BENNY, SRI.SEBASTIAN THOMAS. RESPONDENT(S): -------------------------- 1. COMMERCIAL TAX OFFICER, IIND CIRCLE, CHANGANACHERRY, PIN-686 101. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM-691 001. 3. INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, KOTTAYAM, PIN-686 001. R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.29969 of 2010 ------------------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T ---------------------- Petitioner is challenging Ext.P4 interim order issued by the statutory appellate authority, the 2nd respondent herein. With respect to the assessment year 2006-07, original assessment was completed on 18.3.2008. Aggrieved by that order the petitioner had filed appeal before the 2nd respondent. The appeal was allowed and the assessment was set aside and remanded for passing fresh orders. Ext.P1 is the order of assessment issued consequent to the remand. Aggrieved by Ext.P1 the petitioner again filed Ext.P2 appeal before the 2nd respondent. Along with the appeal Ext.P3 stay petition was also filed. The impugned order, Ext.P4 was issued on Ext.P3 stay petition. 2. In Ext.P4 order the appellate authority had granted interim stay against collection of the tax amount in dispute, on condition of the petitioner remitting 1/3rd of the demand. Ext.P4 order is challenged on the ground that it is issued without application of mind, in a cryptic manner. W.P.(C).29969/10-U -2- Contention of the petitioner is that the appellate authority had not adverted to any of the grounds raised in the appeal. Hence Ext.P4 order is unsustainable in the eye of law, is the contention. 3. On a perusal of the impugned order, it is noticed that after illustrating the arguments raised by the authorised representative of the petitioner, the appellate authority had observed that he had examined the case and since the appellant had made out a prima facie case for conditional stay, the order was issued. Learned counsel for the petitioner points out a Division Bench decision of this court in Supreme Electrical Engg. (P) Ltd. Vs. Commercial Tax Officer (2008 (3) KLT 805) in which it is held as follows:- “7. In the instant case, a perusal of the order passed by the first Appellate Authority while considering the interlocutory application filed by the assessee would only show, that, it has narrated the facts and arguments advanced by the assessee's representative and without expressing its tentative opinion on the controversy involved in the case, has disposed of the application in a cursory manner only by saying: “Examination of the contentions and verification of the records revealed that there is prima facie case for granting conditional stay. In W.P.(C).29969/10-U -3- the circumstances the following orders are passed.” 8. In our considered view, the first appellate authority while considering the interlocutory application filed along with the memorandum of appeal, should apply its mind to the facts of the case and pass a reasoned order. When we say this, we do not mean that elaborate consideration on each one of the issues raised in the memorandum of appeal. The first appellate authority is expected to express his tentative opinion, why the assessee is entitled for only conditional stay and why not absolute stay. If this consideration is not reflected in the order itself, the only inference that the superior forum would draw is, that, there is total non-application of mind by the first appellate authority while considering the application filed by the assessee. Therefore, it is incumbent upon the appellate authority to give reasons. The order as such must be a speaking order and the decision must be supported by reasons, so that the superior court is assured that it is in accordance with law. A laconic order unsupported by reasons cannot be upheld.” 4. Going by the order impugned in this case, it is evident that the order does not reflect any tentative opinion as to why W.P.(C).29969/10-U -4- the assessee is entitled for a stay or as to why the assessee is entitled only for a conditional stay. The consideration of any of the grounds raised in the appeal is not reflected in the order and therefore the inference can only be to the effect that there is total non-application of mind while disposing the stay petition. 5. Under the above circumstances, I am of the view that the impugned order is unsustainable in the eye of law. Accordingly the writ petition is allowed and Ext.P4 is hereby quashed. 6. The 2nd respondent is directed to pass fresh orders on Ext.P3 stay petition after affording an opportunity of hearing to the petitioner, 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. okb