IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 29312 of 2010(L) --------------------------------------- PETITIONER(S): ----------------------- N.V.NOUSHAD, U.V.HOUSE, AJANUR KADAPPURAM PO,KOLAVAYAL, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT(S): ------------------------- 1. COMMERCIAL TAX OFFICER, HOSDURG 683 367. 2. SALES TAX APPELLATE TRIBUNAL ADDITIONAL BENCH, KOZHIKODE 683 328. 3. SPECIAL DEPUTY TAHSILDAR HOSDURG 683 367. BY GOVT. PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J --------------------------- W.P(C) No. 29312 of 2010-L ---------------------------- Dated this the 27th day of September, 2010. J U D G M E N T With respect to assessments pertaining to the years, 2000-'01, 2002-'03, 2003-'04, the second appeals filed by the assessee are pending consideration and disposal before the second respondent Tribunal. Ext.P13 interim order issued by the Tribunal disposing the stay petitions filed along with the appeals, is under challenge in this writ petition. 2. The petitioner herein is one of the legal heirs of the original assessee, who died during pendency of the second appeals before the Tribunal. It is stated that all the legal heirs were impleaded in the appeals. The assessee was doing business in packing case, furniture and timber etc. During the relevant years certain other dealers maintained accounts showing purchases effected from the assessee on the strength of Form 18 declarations. W.P(C) No. 29312 of 2010-L 2 According to the petitioner the assessee was having no knowledge about those Form 18 declarations. However, assessments were completed on the basis of such declarations alleging suppression of turnover. In a writ petition filed before this Court on an earlier occasion, an enquiry was ordered by this Court with respect to the controversy. In a report submitted by the Deputy Superintendent of Police to this Court, it was categorically stated that, the enquiry revealed about forgery and fabrication of records committed and about clandestine opening of Bank Account with the South Indian Bank, Feroke Branch, in the name of assessee, as part of such forgery. It was found that the assessments were completed based on such forged documents. Ext.P1 is the judgment of this Court in W.P(C)No.33646 of 2005. It is observed therein that, pursuant to enquiry conducted it was found that the claim of the petitioner against the assessments were substantially correct. Therefore, the first appellate authority was directed to dispose of the appeal and till then W.P(C) No. 29312 of 2010-L 3 the recovery steps were directed to be kept in abeyance. 3. The first appellate authority had disposed of the appeals as per Exts.P6 to P8 orders. It was found that there is no illegality or irregularity with respect to the assessments. Aggrieved by the orders of the first appellate authority, the present appeals were filed before the Tribunal. In Ext.P13 interlocutory order of the Tribunal a conditional order of stay was granted, after considering the grounds raised. The petitioner was directed to deposit various amounts with respect to different years, which according to the petitioner is approximately equivalent to 1/3rd of the tax in dispute. 4. Specific contention of the petitioner is that the Form 18 declarations were misused by the Accountant of the assessee with connivance of his son, and the liability was fetched on the assessee due to the fabrication and forgery committed. It is contended that the first appellate authority, even after being convinced of the findings contained in the enquiry report as well as in Ext.P1 W.P(C) No. 29312 of 2010-L 4 judgment, had not properly appreciated those contentions. It is pointed out that the findings arrived by the first appellate authority is only to the effect that there was failure on the part of the assessee in keeping the Form 18 declarations in proper safe custody. 5. On a perusal of Ext.P13 it is noticed that, the Tribunal observed that there is no prima-facie materials to accept contentions raised by the appellant regarding misuse of Form 18 declarations. Going by impugned orders of the first appellate authority and on taking note of the observations contained in Ext.P1 judgment which is based on a report of enquiry, I am of the opinion that the matter need elaborate consideration as to whether there was any misuse of Form 18 declarations, as alleged. However, it is not proper for this Court to enter upon such a consideration on the merits, in view of pendency of the appeals before the Tribunal. Normally this Court would not have interfered with any conditions stipulated by the appellate authority while granting interim stay, which is within the absolute W.P(C) No. 29312 of 2010-L 5 discretion of such authorities. Eventhough the appellate Tribunal had illustrated the grounds of appeals, in my opinion Ext.P13 order lacks proper consideration of those grounds with an advertance to the documents which revealed the history of the case. The appreciation of the grounds and reflection of a proper application of mind with reasoning for denying absolute stay was not illustrative from the order impugned, which is a mandatory requirement, going by the dictum laid by this Court in Supreme Electrical Engineering (P) Ltd. V. Commercial Tax Officer (2008(3) KLT 805). 6. Under such circumstances, I am of the considered opinion that the writ petition can be disposed of directing the Tribunal to have an early disposal of the appeals itself, and to keep in abeyance realization of amounts covered under the assessments in question till the disposal of the appeals. It is brought to my notice that along with Ext.P13 order, the Tribunal had issued Ext.P14 order directing the revenue (state) to produce certain documents, which W.P(C) No. 29312 of 2010-L 6 according to the petitioner if produced will prove the forgery committed with respect to the From 18 declarations. It is the case of the petitioner that inspite of repeated adjournments those records were not produced till date. However, it is for the Tribunal to see that appropriate steps are taken for causing production of such records, without any further delay. 7. Learned Government Pleader had pointed out that, the records ordered to be produced are now in the custody of the Government, in connection with conduct of a Writ Appeal filed by the dealer. Under such circumstances, it is pointed out that sufficient time is to be granted for production of the documents. 8. Considering the facts and circumstances as above, the writ petition is disposed of directing the second respondent Tribunal to consider and pass orders on Exts.P9 to P12 appeals, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within three months from the date of receipt of a copy of this judgment. W.P(C) No. 29312 of 2010-L 7 The Tribunal shall also take necessary steps to compel production of the documents as directed in Ext.P14, before disposal of the appeals. 9. Ext.P13 order is modified to the extent of directing the petitioner to furnish security for the entire amount in dispute, covered under Ext.P9 to P12 appeals, within a period of six weeks from today. If security is furnished as directed above, recovery of amounts in dispute which is initiated pursuant to Exts.P15 and P16 notices, shall be kept in abeyance till the disposal of the appeals. 10. The petitioner will produce a copy of this judgment before the second respondent. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab