IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 35213 of 2010(B) --------------------------------------- PETITIONER(S): ----------------------- AJITHA.N.V., M/S.ALUMMOOTTIL AGENCIES, ERAVIPURAM, KOLLAM. BY ADVS. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. RESPONDENT(S): ------------------------- 1. THE DEPUTY COMMISSIONER (APPEALS) II, COMMERCIAL TAXES, KOLLAM-691 001. 2. THE COMMERCIAL TAX OFFICER, 2ND CIRCLE, KOLLAM-691 001. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KOLLAM-691 001. R1 TO R3 BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.35213 of 2010-B ---------------------------------------- Dated this the 25th day of November, 2010. J U D G M E N T Aggrieved by Ext.P1 order of assessment, the petitioner had filed statutory appeal before the 1st respondent, as evidenced from Ext.P2. Ext.P3 is the stay petition filed along with the appeal. The 1st respondent had considered the stay petition and issued Ext.P6 order dismissing the stay petition observing that no prima-facie case for interference is established. 2. According to the petitioner Ext.P6 order issued by the 1st respondent dismissing the stay petition is not legal and proper. It is contended that the 1st respondent had discussed all the grounds raised in the appeal elaborately and arrived at a finding regarding unsustainability of those grounds, as if he is disposing the appeal itself. It was not proper on the part of the 1st respondent to arrive at any conclusion with respect to each and every grounds raised in the appeal, while disposing the interlocutory application, is W.P(C) No.35213 of 2010-B 2 the contention. It is also contended that the 1st respondent had approached the matter in a prejudiced manner with pre-conceived notions, and by virtue of Ext.P6 order he had declared that the appeal itself is without any merits. Learned counsel for the petitioner pointed out that, by virtue of Ext.P6 order the purpose of the appeal itself was defeated and the petitioner has been put to severe prejudice. It is also pointed out that the petitioner had already effected considerable payments out of the amount of tax in dispute. 3. On a perusal of Ext.P6 order impugned in this writ petition, it is noticed that the 1st respondent had illustrated all the grounds raised in the appeal. Further the appellate authority had proceeded to consider each and every grounds raised and arrived at specific findings thereon. As contended by the petitioner, the approach made by the 1st respondent is in the manner equivalent to disposing the appeal itself. If the 1st respondent is considering all the grounds and arriving at specific conclusions regarding such grounds, he could have disposed of the appeal itself. W.P(C) No.35213 of 2010-B 3 4. It is settled law by this time that, while considering interlocutory applications for the purpose of granting stay, the appellate authorities are supposed to consider merits of the grounds, on a prima-facie basis. If the appellate authority is satisfied that a prima-facie case is established, then he has to decide as to whether any absolute stay can be granted or whether it is a fit case for granting conditional stay. On the other hand if the appellate authority is considering all the grounds and is arriving at a conclusion at the time of disposal of the interlocutory application itself, that will virtually negative the purpose of the appeal. 5. Therefore I am of the view that the approach made by the 1st respondent in this case, while disposing the interlocutory application is not justifiable under law. However, since the appeal itself is pending consideration and disposal before the 1st respondent, I am of the view that the matter need not be remanded back to the appellate authority. While directing an early disposal of the appeal, I am of the view that interim stay can be granted subject to W.P(C) No.35213 of 2010-B 4 conditions to be imposed. 6. In the result, the writ petition is disposed of directing the 1st respondent to consider and pass orders on Ext.P2 appeal, after affording an opportunity of 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. 7. Till such time the appeal is disposed of, recovery of amounts covered under Ext.P1, which is now initiated pursuant to Ext.P4 notice, shall be kept in abeyance, subject to condition of the petitioner remitting 1/3rd of the amount in demand and on furnishing security bond for the balance amount. 8. Needless to say that the petitioner shall be given credit with respect to payments already effected, for the purpose of computing 1/3rd of the amount. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// ab P.A to Judge