IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 18229 of 2010(C) -------------------------- PETITIONER: --------------- PAPPUKUTTY BEACH RESORT, LIGHT HOUSE BEACH, KOVALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROPRIETOR, MR.P.NATARAJAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.RAJA KANNAN RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY (TALES), GOVERNMENT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM. 2. INTELLIGENCE OFFICER, SQUAD NO.V, (SPECIAL SQUAD), COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONR (APPEALS), DEPARTMENT OF COMMECIAL TAXES (APPEALS), THIRUVANANTHAPURAM. BY SR.GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.18229 of 2010-C ---------------------------- Dated this the 15th day of June, 2010. J U D G M E N T The petitioner is challenging the condition imposed by the third respondent/appellate authority vide Ext.P8 directing the petitioner to satisfy 50% of the disputed amount of penalty, so as to avail the benefit of interim stay during the pendency of the appeal. 2. The course and events as described in the Writ Petition reveal that, Exts.P1 and P2 orders passed by the second respondent imposing the penalty have been challenged by the petitioner by filing Exts.P3 and P4 appeals along with Exts.P5 and P6 petition for stay. Pursuant to the direction given by this Court as per Ext.P7 judgment in W.P(C) No.32949 of 2009, the petitions for stay were considered by the appellate authority and Ext.P8 common order has been passed, which is impugned in this Writ Petition. 3. The learned counsel for the petitioner submits that Ext.P8 is not a speaking order and that the same is liable to be set aside, in view of the law declared by the Apex Court in Ravi Gupta V. W.P(C) No.18229 of 2010-C 2 Commissioner of Sales Tax, Delhi & another (2009) 22 VST 529 (SC). 4. The learned Government Pleader for the respondents submits, on other hand, that Ext.P8 is very much a 'speaking order' and that the reliance sought to be placed in the dictum laid down in Ravi Gupta's case as mentioned above is not at all correct or attracted to the case in hand (with reference to the facts and figures as given in Exts.P1 and P2 orders passed by the concerned authority imposing the penalty). It is pointed out by the learned Government Pleader that the materials brought to light in the course of the inspection revealed that, as against the 'occupancy' of 896 and the 'rent' of Rs.3300/- per day, in respect of February 2008, the figures reflected as per the return were only '88' occupancies and rent at the rate of Rs.700/-, which by itself reveals the substantial variation as to the tax liability under the Kerala Taxes on Luxury Tax Act 1976. Similar course is revealed with respect to March 2008 as well. 5. The case projected by the petitioner in this Writ Petition is that the lending of room at subsidised rates has not been considered by the appellate authority, while granting interim stay; contending that the rate shown in the tariff is not the actual rate. Reliance is W.P(C) No.18229 of 2010-C 3 sought to be placed on Exts.P9 and P10. 6. Obviously, there is no explanation from the part of the petitioner as to the incriminating circumstances and the figures with regard to the number of actual occupancies and the dispute is more in connection with the actual tariff rate. However, the matter requires to be looked into in detail and the actual liability can be fixed only on finalization of the appeal. Going by the figures as to the rates of rent, this Court finds that the liability now sought to be satisfied by the petitioner by remitting 50% appears to be rather on the higher side and that the same could be scaled down to '1/3rd'. 7. In the above circumstances, the condition imposed vide Ext.P8 is hereby modified, by reducing the same from 50% to '1/3rd' and the petitioner shall furnish bank guarantee for the balance amount; on which event the petitioner will continue to avail the benefit of interim stay granted by the appellate authority till finalization of the proceedings. The appellate authority ie. the third respondent is directed to consider and pass final orders in Exts.P3 and P4 appeals in accordance with law, after hearing the petitioner as expeditiously as possible, at any rate within two months from the W.P(C) No.18229 of 2010-C 4 date of receipt of a copy of this judgment. Since the time stipulated by the appellate authority in Ext.P8 to satisfy the condition is already over, the petitioner is granted two week's time to satisfy the condition, by remitting 1/3rd of the amount and to furnish the bank guarantee as aforesaid. The Writ Petition is disposed of. P.R.RAMACHANDRA MENON JUDGE ab