IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 2711 of 2011(L) -------------------------------------- PETITIONER(S): ----------------------- M/S.ACE CONTRACTING AND ENGINEERING CORPORATION, I B, ACE NIMBUS APARTMENTS, NIVYA ROAD, KALOOR, KOCHI-17, REP. BY ITS MANAGING PARTNER, MR.MATHEW JOSEPH, S/O. V.M.JOSEPH, AGED 46 YEARS, VADAKKEPARAMBIL HOUSE, ASOKA ROAD, KALOOR, KOCHI-17. BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA RESPONDENT(S): -------------------------- 1. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM.682 016 2. THE ASSISTANT COMMISSIONER (WC & LT), COMMERCIAL TAXES, ERNAKULAM.682 016 R1 & R2 BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2011, ALONG WITH WP(C)NO.2747/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM,J. ------------------------------- WP(C).NOs. 2711 & 2747 of 2011 --------------------------------- Dated this the 27th day of January, 2011 JUDGMENT Ext.P4 in both these cases, which is the common order issued by the appellate authority granting interim relief, is under challenge. With respect to the assessment completed against the petitioner for the years 2003-04 and 2004-05, statutory appeals were filed before the 1st respondent. Ext.P4 is the interim order issued on the stay petitions filed along with the appeals. 2. Petitioner is impugning the condition insisted under Ext.P4 for payment of 50% of the total amount due. According to the petitioner, the condition was imposed in a mechanical manner without proper application of mind and without proper advertence to the contentions raised in the appeals. It is the contention of the petitioner that, the petitioner was prevented from producing proper documents before the assessing authority in order to establish the claim for exemption, because of the particular circumstances existing. But the appellate authority has WP(C).2711 & 2747 of 2011 2 not considered any such contentions . 3. On a perusal of Ext.P4 it is revealed that the appellate authority had illustrated all the contentions raised by the petitioner. After evaluating all such contentions the appellate authority found that there was deliberate laches on the part of the petitioner in co-operating with finalisation of the assessment and the petitioner could not establish the claim for exemption on the basis of any valid document. However the appellate authority found that the petitioner could establish a prima facie case for granting conditional stay and accordingly 50% of the amount was insisted to be paid. 4. Eventhough it is evident that all the specific contentions raised are considered by the appellate authority, no specific reasoning is mentioned with respect to imposition of the condition for payment of 50%. Going by the dictum laid by this court in a recent decision, in Supreme Electrical Engineering Pvt. Ltd. vs. Commercial Tax Officer (2008(3) KLT 805) the appellate authority is obliged to mention specific reasons as to why the condition for payment of part of the amount is insisted and as to why the appellant is not entitled for an absolute stay. WP(C).2711 & 2747 of 2011 3 Learned counsel for the petitioner submits that the petitioner is in stringent financial condition and that, insistence for payment of 50% is causing onerous liability which is in fact unworkable in the present situation to be complied with. 5. Considering the above aspects I am of the view that the impugned order is issued not strictly in accordance with the requirements as settled through precedents. However, I am not inclined to remand the matter for further consideration, because of the fact that interest of justice will be served by directing the appellate authority to expedite the disposal of the appeal itself. 6. Under the above circumstance, the writ petition is disposed of directing the 1st respondent to consider and dispose of Ext.P3 appeals in both these cases, after affording an opportunity of hearing to the petitioner as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. 7. Till such time the appeals are disposed of, recovery steps shall be kept in abeyance, if the petitioner makes payment of 1/3rd of the amount in demand, instead of 50% insisted through the impugned order. The petitioner should make WP(C).2711 & 2747 of 2011 4 payment of the 1/3rd amount, within two weeks from the date of receipt of a copy of this judgment. Petitioner shall also furnish security for the balance amount within the said period. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).2711 & 2747 of 2011 5