IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WP(C).No. 1489 of 2011(I) ------------------------- PETITIONER(S) :- ----------------------- M/S.SPML INFRA LIMITED (FORMERLY, SUBHASH PROJECTS & MARKETING LIMITED) FIRST FLOOR, THYKKOOTTATHIL BUILDINGS, PLG NO.12/166M, THRIKKAKARA, COCHIN – 682 025. REPRESENTED BY ITS ASSISTANT MANAGER MR.SUNIL ARLAND. BY ADV. SMT.K.LATHA RESPONDENT(S) :- ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 1. 2. COMMERCIAL TAX OFFIER (WC), O/O. THE DEUTY COMMISSIONR (W.C & LT) COMMERCIAL TAXES, ERNKAULAM – 682 019. 3. DEPUTY COMMISSIONR (APPEALS), COMMERCIAL TAXES, ERNAKULAM – 682 019. 4. INSEPCTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KAKKANAD, ERNAKULAM – 682 030. SENIOR GOVERNMENT PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt C.K.ABDUL REHIM, J. ----------------------------- W.P.(C)No.1489 of 2011 --------------------------------- Dated this the 25th day of May 2011 J U D G M E N T Ext.P4 interim order issued by the 3rd respondent appellate authority is under challenge in this writ petition. Assessment was finalised against petitioner with respect to the year 2007-2008 as per Ext.P1 order. Petitioner had challenged the assessment before the 3rd respondent in Ext.P2 appeal which was filed accompanied by a stay petition. Through Ext.P4 the stay petition was disposed of granting interim stay subject to condition of the petitioner remitting 1/3 rd of the total amount and on furnishing security bond for the balance. 2. According to the petitioner the condition was imposed in a mechanical manner without considering the factual aspects and without adverting to the contentions raised in its proper perspective. W.P.(C)No.1489 of 2011 -: 2 :- 3. Contention of the petitioner is that the contract receipts which forms part of the turn over had already suffered tax and even if it is assumed that there was a difference in the turn over as per the audited report, the petitioner is not liable for payment of tax on the differential value of the turn over. Further contention of the petitioner is that, the assessment with respect to the year 2008-2009 is pending finalisation and inspite of specific directions issued by this Court in Ext.P5 judgment, the assessing authority is not finalising the same. Petitioner claims that if the assessment for the year 2008-2009 is finalised there will be a huge amount liable for refund, which is paid is excess tax. 4. Heard; learned Government Pleader appearing on behalf of respondents. It is submitted that, non finalisation of assessment with respect to the year 2008-2009 was only because of non co-operation of the petitioner in producing the relevant books of accounts. The contention regarding non liability for payment of tax for the year 2007-2008 is stoutly refuted. It is further contended that the appellate authority W.P.(C)No.1489 of 2011 -: 3 :- had exercised its discretion after taking into consideration of the ground raised in the appeal and those contentions raised at the time of hearing of the interim application. 5. On a perusal of Ext.P4, it is evident that the appellate authority had illustrated all the contentions raised by the petitioner. The allegation regarding total lack of non consideration could not be accepted going by the contents of the impugned order. However, it is noticed that the aspect of non finalisation of assessment for the subsequent year, was not considered by the appellate authority. So also, no specific reason has stated with respect to discarding of the contentions raised to the extent that the turn over had already suffered tax. 6. However, remitting the matter back to the appellate authority for passing fresh orders will only result in multiplying the proceedings and also in delaying disposal of the appeal. Hence, I am of the view that ends of justice will be achieved if a direction is issued to the appellate authority for an early disposal of the appeal itself and to restrain the W.P.(C)No.1489 of 2011 -: 4 :- recovery steps, by imposing condition of a less rigorous nature. 7. Accordingly, the writ petition is disposed of directing the 3rd respondent to consider and pass orders on Ext.P2 appeal after affording an opportunity of hearing the petitioner, as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 8. Till such time the appeal is disposed of, in modification of the condition stipulated in Ext.P4, the respondents are directed to keep in abeyance all the recovery proceedings for realising the amounts covered in Ext.P1 order of assessment, provided the petitioner remits a sum of Rs.15 lakhs (Rupees Fifteen Lakhs only) and furnishes security bonds for the balance amount, within a period of three weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. Jvt