IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 W.A.No.1725 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).No.23128/2008 DATED 06/08/2008 .................... APPELLANT/PETITIONER:- ---------------------------------------- POPULAR MOTOR CORPORATION, INDIAN EXPRESS BUILDINGS, KALOOR, KOCHI-17, REPRESENTED MBY ITS EXECUTIVE DIRECTOR, D.KRISHNAN. BY ADV. SRI.R.MURALIDHARAN (AROOR) RESPONDENTS/RESPONDENTS:- --------------------------------------------------- 1. ASSISTANT COMMISSIONER-II, SPECIAL CIRCLE-III, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu, C.J. & A.K.Basheer, J. ---------------------------------------------- W.A.No.1725 of 2008 ---------------------------------------------- Dated, this the 19th day of August, 2008 JUDGMENT H.L.Dattu,C.J. The assessee, being aggrieved by the orders of assessment passed by the assessing authority for the assessment year 2004-05, has preferred the first appeal before the first appellate authority. Along with the appeal, the assessee has also filed an application for grant of an interim order. The first appellate authority, while considering the application filed by the assessee, has passed the following order. The same reads as under: “This is an appeal filed by M/s.Popular Motor Corporation, Geethanjali Junction, Bye Pass, Kochi-19 and is directed against the orders of the Assistant Commissioner (Assmt), Special Circle-III, Commercial Taxes, Ernakulam for the year 2004-05. Appellant filed petition for stay and Sri.K.Govinda Pillai, Advocate appeared and was heard on the petition. It was contended that the Assessing Authority violated natural justice while forfeiting the tax remitted by mistake without issuing notice stating that the tax remitted is collected. The contention with respect to two penalty cases and concession for INCS sales and tax on warranty claim does not deserve stay as no prima facie case established. In the circumstances the following orders are passed:- ORDER NO.SP.339/08 in STA-430/08 dated: 11-06-2008 Payment of balance amount of tax for the year 2004-05 under KGST Act is stayed till the disposal of W.A.No.1725 of 2008 - 2 - appeal, on condition that the petitioner remits Rs.60,00,000/- (Rupees sixty lakhs only) of the balance amount due and furnishes security for the balance amount to the satisfaction of the assessing authority within a period of one month from the date of this order. If the conditions are not fulfilled the stay order passed will stand vacated automatically”. 2. Aggrieved by the non-speaking order passed by the first appellate authority, the assessee was before this Court in W.P.(C). No.23128 of 2008. The learned Single Judge has disposed of the writ petition by directing the assessee to pay Rs.55 lakhs instead of Rs.60 lakhs as ordered by the first appellate authority and to offer security for the balance of the amount. Aggrieved by the said order, the petitioner is before us in this Writ Appeal. 3. Sri.Muhammed Rafiq, learned Government Advocate, takes notice for the respondents. 4. We have heard learned counsels appearing for the parties to the lis. 5. We have carefully perused the interim orders passed by the first appellate authority. A perusal of the same would clearly demonstrate that the first appellate authority, while considering the application filed by the assessee for grant of interim prayer, has not applied its mind. That only means, that, the orders passed by the first appellate authority is a non-speaking order. Time and again we have observed that the first appellate authority, while considering an W.A.No.1725 of 2008 - 3 - application for grant of an interim prayer, shall consider the matter objectively and subjectively and further pass a speaking order, giving reasons. Since that has not been done in this case, we cannot sustain the orders passed by the first appellate authority. 6. Therefore, we pass the following: Order (i) The Writ Appeal is disposed of. (ii) The orders passed by the learned Single Judge dated 6th August, 2008 as well as the orders passed by the first appellate authority dated 11.6.2008 are set aside. (iii) The matter is remanded back to the first appellate authority to consider the application filed by the assessee dated 11.6.2008 in accordance with law, as expeditiously as possible, at any rate, within one month's time from today. 7. Sri.Muhammed Rafiq, the learned Government Advocate, is directed to communicate the orders passed by us to the first appellate authority. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge