IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 35078 of 2010(H) -------------------------- PETITIONER: ------------------- FOCUZ CORPORATION PVT. LTD., FOCUZ TOWERS, EDAPPALLY, COCHIN-24, REPRESENTED BY ITS DIRECTOR & CHIEF EXECUTIVE OFFICER, TONY RAPHAEL. BY ADVS. SMT.S.K.DEVI SRI.SHANMUGHAM D. JAYAN RESPONDENTS: ----------------------- 1. THE ASST. COMMISSIONER (ASSMT) COMMERCIAL TAXES, SPL.CIRCLE I, ERNAKULAM, KOCHI-30. 2. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM, COCHI - 30. 3. THE INSPECTING ASST. COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI-30. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 35078 of 2010 --------------------------------- Dated this the 23rd day of November, 2010 JUDGMENT Challenge in this writ petition is against Ext.P5 interim order issued by the 2nd respondent. Aggrieved by Exts.P1 and P2 orders of assessments, the petitioner had preferred appeals before the 2nd respondent, as evidenced from Exts.P3 and P4. Ext.P5 is the common order issued on the stay petitions filed along with Exts.P3 and P4 appeals. In Ext.P5 the 2nd respondent had granted stay subject to condition of the petitioner remitting 25% of the total amount due. 2. According to the petitioner, the 2nd respondent had failed in considering the matter in its real perspective. The condition for payment was insisted in a quite mechanical manner, is the contention. It is stated that there was no proper advertence to the grounds raised in the appeals or a proper consideration of the merits of such grounds. Contention is that the impugned order is lacking from proper reasonings with respect to imposition of the condition. Petitioner points out that WP(C).35078/2010 2 the assessments were completed without affording any opportunity to the petitioner to produce the books of accounts. If there was any opportunity to verify the books of accounts the assessing authority would not have imposed such huge additions, is the contention. It was also contended that the condition stipulated is highly rigorous in nature and is causing enormous liability which is practically impossible to be complied with. Payment of 25% of the total amount itself will cause huge burden on the petitioner and considering their stringent financial situations, the petitioneris finding it very difficult to comply with such condition. It is contended that in effect the stipulation contained in Ext.P5 will ruin the entire business activity of the petitioner. 3. On a perusal of Ext.P5, I noticed that the appellate authority had adverted to all the main grounds raised in the appeals. The order reflects proper illustration of such grounds as well as its consideration on merits. The authority had prima facie arrived at conclusions regarding sustainability of such grounds. It was found that the petitioner had completely failed in producing the books of accounts, as required by the assessing WP(C).35078/2010 3 authority, and that there was substantial reasons for the assessing authority to complete the assessment on a best judgment basis. Having found that the petitioner could establish a prima facie case, the conditional stay was granted. 4. Learned counsel for the petitioner points out a recent decision of a Division Bench of this court in Supreme Electrical Engineering Pvt. Ltd. vs. Commercial Tax Officer (2008(3) KLT 805). The dictum laid down in the said decision is to the effect that even for imposing a condition while granting interim stay, the appellate authorities should specifically mention the reasons for imposing such conditions. The appellate authorities are bound to mention reasons as to why the appellants are not entitled for an absolute stay. While analysing the impugned order, I am of the view that the appellate authority had not specifically mentioned any reasoning for insisting payment of 25% of the amount due. But I am of the view that since the condition imposed is only for payment of 25%, the same cannot be termed as rigorous. Hence any interference with respect to justifiability of the condition imposed is not called for. 5. It is the further contention of the petitioner that the WP(C).35078/2010 4 appellate authority had failed to take note of the documents produced before that authority at the time of hearing of the interim petitions. It is stated that the entire books of acocunts were produced before the appellate authority and if the appellate authority had perused such documents, the condition would not have been imposed. I am of the opinion that it is not obligatory or it is rather impossible for the appellate authority to have a meticulous perusal of the books of accounts at the time of issuing interim orders. Hence I could not found fault with the appellate authority in not having an exhaustive verification of the books of accounts. 6. Considering the submission that the condition imposed is causing heavy burden on the petitioner, which is practically impossible to be complied with, I am of the view that it is not proper for this court to look into the reasonableness of the condition, since it is a matter coming within the discretionary jurisdiction of the appellate authority. However I am of the view that the appellate authority can be directed to consider and dispose of the appeal on an earlier basis. Considering the fact that the petitioner was prosecuting this writ petition against the WP(C).35078/2010 5 interim order I am of the view that an enlargement of the time stipulated for compliance is also justified. 7. In the result the writ petition is disposed of directing the 2nd respondent to consider and pass orders on Exts.P3 and P4 appeals, 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. 8. While refusing to interfere with Ext.P5 order, it is made clear that if the petitioner makes payment of the amount of 25% stipulated in Ext.P5 in two equal monthly instalments falling due on or before 31.12.2010 and on or before 15.1.2011, the same shall be considered as proper compliance of the condition stipulated in Ext.P5. 9. Needless to say that the petitioner is liable to furnish security bond for the balance amount as stipulated in Ext.P5, along with payment of the 2nd instalment as directed above. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).35078/2010 6