IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 26751 of 2011(T) --------------------------------------- PETITIONER: ------------------ M/S. FOSTER HOT BREAD (P) LTD. KINFRA FOOD PART, KAKKANCHERY, MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, MANOLY KUNHIMOOSA. BY ADVS. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENTS: ----------------------- 1. THE COMMERCIAL TAX OFFICER, THIRURANGADI-676 306. 2. THE ASSISTANT COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD-678 001. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MALAPPPURAM AT MANJERI-676 121 R1 TO R3 BY GOVT. PLEADER SMT. SOBHA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26751 of 2011(T) APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2005-06 DATED 12-04-2011 EXT.P2:- TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2006-07 DATED 12-04-2011 EXT.P3:- TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2007-08 DATED 30-05-2011 EXT.P4:- TRUE COPY OF THE ASSESSMENT ORDER PASSED BY IST RESPONDENT FOR THE YEAR 2008-09 DATED 28-05-2011 EXT.P5:- TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 05-06 DATED 9/7/2011 EXT.P6:- TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 06-07 DATED 9/7/2011 EXT.P7:- TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 07-08 DATED 9/7/2011 EXT.P8:- TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 08-09 DATED 9/7/2011 EXT.P9:- TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 06-07 DATED 9/7/2011. EXT.P10:- TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 07-08 DATED 9/7/2011. EXT.P11:- TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 08-09 DATED 9/7/2011. EXT.P12:- TRUE COPY OF THE JUDGEMENT IN WPC.NO.23293/2011 DT.26/8/2011. EXT.P13:- TRUE COPY OF THE POSTING NOTICE ISSUED BY THE 2ND RESPONDENT DATED 21/8/2011 EXT.P14:- TRUE COPY OF THE INTERIM ORDER PASSED BY 2ND RESPONDENT FOR THE YEAR 2005-06 DATED 19/9/2011. EXT.P15:- TRUE COPY OF THE INTERIM ORDER PASSED BY 2ND RESPONDENT FOR THE YEAR 2006-07 DATED 19/9/2011. EXT.P16:- TRUE COPY OF THE INTERIM ORDER PASSED BY 2ND RESPONDENT FOR THE YEAR 2007-08 DATED 19/9/2011. WP(C).No. 26751 of 2011(T) -2- EXT.P17:- TRUE COPY OF THE INTERIM ORDER PASSED BY 2ND RESPONDENT FOR THE YEAR 2008-09 DATED 19/9/2011. EXT.P18:- TRUE COPY OF THE DEMAND NOTICE IN FORM NO.12A ISSUED BY IST RESPONDENT FOR THEYEAR 2006-07 DATED 2/6/2011 EXT.P19:- TRUE COPY OF THE DEMAND NOTICE IN FORM NO.12A ISSUED BY IST RESPONDENT FOR THE YEAR 2007-08 DATED 6/6/2011 EXT.P20:- TRUE COPY OF THE DEMAND NOTICE IN FORM NO.12A ISSUED BY THE IST RESPONDENT FOR THE YEAR 2008-09 DATED 26/6/2011. //TRUE COPY// P.A. TO JUDGE AMG S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C) No. 26751 OF 2011 ------------------------------------------------- DATED THIS THE 18th DAY OF OCTOBER, 2011 J U D G M E N T The petitioner challenges Exts.P14 to 17 interim orders passed in appeals filed by them against the assessment orders for various years. By the said orders a conditional order of stay of recovery of tax has been passed directing the petitioner to pay 50% of the balance tax. Petitioner challenges the same on the ground of non-application of mind and non-consideration of the principles laid down by this Court in various decisions in the matter of disposing stay applications by appellate authorities. They would also contend that the stay petitions were not also posted for consideration and the appeals were posted for consideration. They point out that in Ext.P4 an appeal in respect of refund also an order of stay has been passed although there was no scope for any stay which would show that there is total non application of mind by the appellate authority. Learned Government Pleader on instructions submits that Ext.P4 has been withdrawn since petition for early posting has been mistakenly considered as a stay petition. I have considered the W.P.(C) No.26751/2011 -2- rival contentions. I do not find any merit in the contention that the stay petition has not been posted separately in so far as the petitioner was heard in the matter. On a reading of the impugned orders, I am satisfied that the appellate authority has considered the matter in the right perspective. Therefore, I am of the view that the appellate authority has exercised the discretion vested in him in the matter of granting of stay correctly. That being so, I do not find any merit in the writ petition and the same is dismissed. The counsel for the petitioner seeks two weeks time to comply with the conditions in the stay orders. I grant two more weeks time from today to comply with the directions in the impugned orders. Sd/- S. SIRI JAGAN, JUDGE. AMG True copy P.A to Judge