IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 WP(C).No. 27366 of 2011(U) --------------------------------------- PETITIONER: ------------------- M/S.KAMAKSHI CONTRUCTIONS, 35/4250, PAZHAYANADAKAVU, THRISSUR-680 001, REPRESENTED BY ITS MANAGING PARTNER R.PARAMESWARAN. BY ADV. SRI.T.R.RAJAN. RESPONDENTS: ------------------------ 1. THE DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR, PIN-680 003. 2. THE COMMERCIAL TAX OFFICER (WORKS CONTRACT & LUXURY TAX), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR, PIN-680 003. R1 & R2 BY GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.27366/2011-U: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER NO.32 40 84 80 81 6/2007- 2008 DATED 3-7-2011 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P2: TRUE COPY OF THE APPEAL DATED 12-8-2011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXHIBIT P3: TRUE COPY OF THE STAY PETITION DATED 12-8-2011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXHIBIT P4: TRUE COPY OF THE EARLY HEARING PETITION DATED 12-8-2011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXHIBIT P5: TRUE COPY OF THE ORDER NO.KVATA-404/11 DATED 22-9-2011 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P6: TRUE COPY OF THE ORDER NO.KVATA-16/11 DATED 4-8-2011 PASSED BY THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.27366 OF 2011 ---------------------------------------------- Dated this the 17th day of October, 2011 JUDGMENT The petitioner challenges Ext.P5 order passed by the 1st respondent in Ext.P3 stay application filed along with Ext.P2 appeal challenging Ext.P1 assessment order. According to the petitioner, the 1st respondent ought to have stayed the recovery of the amounts as per Ext.P1 in full, since the very same appellate authority had passed Ext.P6 order in an appeal against the assessment for the year 2009-2010 accepting identical contentions and therefore, he has no option but to allow this appeal also and therefore, the petitioner had made out a fool-proof case for full stay. 2. I have heard the learned Government Pleader also. The learned Government Pleader would submit that pursuant to the appellate order, for the earlier assessment year, no revised orders have been passed and only after passing the revised orders, the petitioner's liability can be ascertained and that is why the condition of payment of 30% of the disputed amount has W.P.(C)No.27366/11 2 been insisted on as a condition for stay. 3. I have considered the rival contentions in detail. Once the 1st respondent has already allowed the appeal against assessment for another assessment year challenged on the very same ground, I do not think that is is just and equitable to insist on payment of any amount in an appeal for the subsequent years as a condition for stay, insofar as the 1st respondent is bound to follow the earlier order Ext.P6, in respect of Ext.P2 appeal also. As such, I am of opinion that while passing Ext.P5 order, the 1st respondent has not followed the principles laid down by this Court in various decisions in the matter of passing stay orders. Accordingly, Ext.P5 order is quashed. The recovery of the tax disputed in Ext.P2 appeal would stand stayed until disposal of the appeal. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.27366/11 3 W.P.(C)No.27366/11 4