IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 W.A.No.673 of 2008 ---------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.8734/2008 DATED 14/03/2008 .................... APPELLANT/PETITIONER:- --------------------------------------- BEETA TRADERS & AGENCIES PVT.LTD., 35/3012 A, ELAVUNGAL HOUSE, VYLOPPILLY ROAD, PALARIVATTOM, KOCHI - 682 025. REPRESENTED BY BINU OOMMEN, MANAGING DIRECTOR. BY ADV. SRI.JOSEPH JERARD SAMSOM RODRIGUES RESPONDENTS/RESPONDENTS:- ------------------------------------------------ 1. COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT), OFFICE OF THE DEPUTY COMMISSIONER (AUDIT ASSESSMENT), COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY COMMISSIONER (APPEALS) II, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KOCHI - 30. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.673 of 2008 ------------------------------------------ Dated, this the 24th day of March, 2008 JUDGMENT H.L.Dattu, C.J. This writ appeal is directed against the orders passed by the learned Single Judge in W.P.(C) No.8734 of 2008 dated 14th March, 2008. By the impugned order, the learned Single Judge has rejected the writ petition and thereby has confirmed the orders passed by the first appellate authority who had directed the petitioner to pay fifty per cent of the disputed tax and to furnish security for the balance of amount to the satisfaction of the assessing authority on or before 25.3.2008. 2. Being aggrieved by the orders so passed by the first appellate authority, the petitioner was before this Court in the writ petition. 3. The main contention of the petitioner before this Court was that the first appellate authority without properly examining the grounds of appeal could not have passed the impugned order dated 6th March, 2008. 4. Aggrieved by the order of assessment passed by the assessing authority for the period from April, 2005 to March, 2006, the petitioner had filed appeal before the first appellate authority. Along with the appeal an application for stay was also filed. The first appellate authority while considering the stay application is of the opinion that the petitioner has made out a prima facie case for a conditional interim order. Having come to that conclusion the first appellate authority had directed the assessee to pay fifty per cent of the W.A.No.673 of 2008 2 disputed tax and has further directed the assessee to furnish security for the balance amount to the satisfaction of the assessing authority. 5. Learned counsel appearing for the appellant would submit that the order passed by the assessing authority is without reference to the records and and other pleadings pleaded by the appellant. 6. In the instant case, the first appellate authority is not deciding the appeal filed by the assessee. He is only considering the application filed by the assessee for grant of an interim order. In such type of cases we cannot expect the first appellate authority to consider each one of the grounds raised in the memorandum of appeal to grant or not to grant the interim order. If the first appellate authority is satisfied that the petitioner has made out a case for entertaining the appeal, then he is expected to consider whether the appellant is entitled for an interim order. The appellate authority after going through the orders of assessment, if he is prima facie of the opinion, that the appellant is not entitled to unconditional interim order, he cannot grant him the interim relief without imposing conditions. 7. Keeping that aspect of the matter in view, the first appellate authority after examining the records of the case has directed the petitioner to pay fifty percent of the disputed tax and furnish security for the balance amount to the satisfaction of the assessing authority on or before 25.3.2008. This Court in exercise of its powers under Article 226 of the Constitution will not normally interfere with the interim orders passed by the authorities under the Act, unless the orders so passed are either perverse or capricious or contrary to the W.A.No.673 of 2008 3 statutory provisions. Those elements are not found in the interim order passed by the first appellate authority. Keeping these aspects of the matter in view, the learned Single Judge has rejected the writ petition. We do not find any error in the order passed by the learned Single Judge which would call for our interference in this appeal. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns/DK.