IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 29925 of 2010(M) ------------------------- PETITIONER : ----------------- M/S.MERITRA HOMES PVT.LTD., 39/6800, VALLAMATTOM ESTATE, RAVIPURAM, KOCHI REPRESENTED BY ITS MANAGING DIRECTOR, SHRI.T.N.RAVISANKAR. BY ADV. SRI.DALE P. KURIAN RESPONDENT(S): ------------------------ 1. THE COMMERCIAL TAX OFFICER (WC), COMMERCIAL TAXES BUILDING, M.G.ROAD, PERUMANNOOR, ERNAKULAM. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES BUILDING, M.G.ROAD, PERUMANNOOR, ERNAKULAM. R1 & R2 BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.29925 of 2010 ------------------------------------------- Dated this the 29th day of September, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P9 interlocutory order passed by the first appellate authority, the 2nd respondent. Along with statutory appeals filed against Ext.P1 series assessments, the petitioner had approached the appellate authority with petitions seeking stay of realisation of the tax amount in dispute. Ext.P3 series are the stay petitions filed. Through Ext.P9 common order, the 2nd respondent had granted conditional stay insisting upon the petitioner to remit 50% of the tax amount and to furnish security bond with respect to the balance, within a period of two weeks from the date of receipt of the order. 2. It is contended that the impugned order is one issued without proper application of mind and the same is lacking proper reasoning for imposing the condition. W.P.(C).29925/10-M -2- Petitioner relies on the judgment of a Division Bench of this court in W.A.No:1641/2008 (dt.6.8.2008), the relevant portion of which is extracted below; “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.” 3. On a perusal of the impugned order, I notice that the appellate authority had reiterated all the major grounds raised in the appeal. After elaborating such contentions it is observed as follows:- “On consideration of the rival issues the sustainability of the assessment can be appreciated only after detailed verification of the records. Eventhough the appellant is able to establish a W.P.(C).29925/10-M -3- prima facie case for conditional stay, in the circumstances the following orders issued.” 4. Considering the above observations, I am not agreeable with the contention that consideration by the appellate authority is not reflected in the order. It is after considering the contentions that the appellate authority observed that sustainability of such contentions can be appreciated only after detailed verification of the records. Further, the observation is to the effect that the appellate authority is convinced that a prima facie case has been made out by the appellant. Therefore I am of the considered opinion that Ext.P9 order is not lacking from any of the ingredients required to be reflected therein, going by the dictum laid in the decision cited above. 5. Sri. Dale P. Kurien, learned counsel appearing for the petitioner submitted that payment of 50% of the amount will cause heavy burden on the petitioner and such onerous liability could not be fulfilled considering financial position of the petitioner at present. Imposition of the condition is a W.P.(C).29925/10-M -4- matter which comes within the absolute discretion of the appellate authority. It is based on appreciation of the contentions that the appellate authority makes up its mind as to what should be the conditions to be insisted upon while granting stay. Merely because such conditions will work out as not practicable to be complied with, interference by this court is not proper and warranted. However, considering largeness of the amount covered under the disputed assessments as well as considering the submissions regarding financial status of the petitioner, I am inclined to show indulgence in reducing the burden of liability cast upon under the interim order. At the same time the 2nd respondent is also directed to expedite disposal of the appeal at the earliest possible. 6. In the result, while dismissing the writ petition Ext.P9 order is modified to the limited extent of permitting the petitioner to remit 1/3rd of the tax amount in dispute and to furnish security bond for the balance. If such conditions are complied with within a period of one month from today, W.P.(C).29925/10-M -5- recovery steps shall be kept in abeyance till the disposal of the appeal. 7. The 2nd respondent will take all earnest efforts to dispose of the appeal at the earliest possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb