IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 17104 of 2009(G) -------------------------- PETITIONER: --------------- ANOOP G. MS.VICTORY ENTERPRISES, CHAVAKKAD. BY ADV. MR. P.RAGHUNATH MR. PREMJIT NAGENDRAN RESPONDENTS: --------------- 1. COMMERCIAL TAX OFFICER, CHAVAKKAD. 2. DEPUTY COMMISSIONER (APPEALS), ERNAKULAM. 3. INSPECTING ASST. COMMISSIONER, COM. TAXES, THRISSUR. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009, ALONG WITH WPC NO. 17105 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) Nos. 17104 of 2009 and 17105 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 26th day of June, 2009 JUDGMENT The common issue involved in both these cases is, whether the concerned appellate authority is right in imposing the condition on the petitioners, to remit 50% of the tax amount due and to furnish security for the balance amount, for availing the benefit of interim stay granted during the pendency of appeal, particularly when according to the petitioners, the issue is squarely covered as per the decision rendered by the Appellate Tribunal holding that, the particular commodity will attract tax liability only to the tune of 4% and nothing more. 2. In the impugned interim orders passed by the appellate authority, reference has of course been made to the orders passed by the Tribunal. But it is stated that, one of the members has taken a dissenting view observing that the commodity is taxable @ 12.5 %, which however was not acceptable to the majority who decided the issue in favour of the assessee, holding that the particular commodity would attract the tax only @ 4 %. When the decision of the Tribunal to be applied was the 'majority decision', the legal position in this regard has been quite wrongly understood and applied by the appellate WP (C) Nos.17104 & 17105 of 2009 : 2 : authority, while passing the impugned orders, fixing the liability upon the petitioners to satisfy 50 % of the amount due. Absolutely, no second thought is necessary to hold that the impugned orders are not correct or sustainable and that the matter has to be reconsidered with proper application of mind. 3. The learned Government Pleader appearing on behalf of the respondents submits that, the verdict passed by the Tribunal holding that the concerned commodity will attract the tax liability only @ 4 % has already been subjected to challenge by filing a revision petition before this Court and the same is still pending. It is also pointed out that a decision has already been rendered by this Court in OTA 9 of 2007, wherein a finding has been rendered that the concerned commodity will attract the tax liability @ 12.5 %. This being the position, the matter requires to be reconsidered by the appellate authority, with reference to the above verdict as well. 4. In the above circumstances, the orders impugned in both the above cases are set aside and the second respondent is directed to reconsider the petitions for stay filed by the petitioners in the light of the 'majority decision' rendered by the Tribunal and also with specific reference to the verdict, stated as passed by this Court in OTA 9 of 2007. The proceedings as above shall be finalized as expeditiously as possible, at any rate, within one month from the date of receipt of a WP (C) Nos.17104 & 17105 of 2009 : 3 : copy of this judgment. It is made clear that, till appropriate orders are passed as above, the coercive proceedings, stated as being pursued against the petitioners, shall be kept in abeyance. Both the Writ Petitions are disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd