IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).No. 15469 of 2011(G) ---------------------------------------- PETITIONER(S): ------------------------ SHAJAHAN S., PROPRIETOR, M/S.PREMIER TECH, AROOR, ALAPPUZHA. BY DR.K.B.MOHAMED KUTTY, SENIOR ADVOCATE BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------------------- 1. THE INTELLIGENCE OFFICER, SQUAD NO.1, COMMERCIAL TAX, PATHANAMTHITTA.PIN-689 645 2. THE COMMERCIAL TAX OFFICER, WORKS CONTRACT, OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ALLEPPEY.PIN-688 001 3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM.PIN-691 001 4. THE INSPECTING ASST.COMMISSIONER, COMMERCIAL TAXES, ALAPPUZHA.PIN-688 001 R1 TO R4 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.15469/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PENALTY ORDER ALONG WITH DEMAND NOTICE DATED 7/2/2011. P2 COPY OF THE OBJECTION DATED 26/1/2011. P3 COPY OF THE NOTICE DATED 11/10/2010. P4 COPY OF THE APPEAL PETITION DATED 8/3/2011 SUBMITTED BEFORE THE THIRD RESPONDENT. P5 COPY OF THE ADVANCE BEARING PETITION DATED 8/3/2011 SUBMITTED BEFORE THE THIRD RESPONDENT. P6 COPY OF THE STAY PETITION DATED 8/3/2011. P7 COPY OF THE NOTICE DATED 11/4/2011. P8 COPY OF THE STAY ORDER DATED 9/5/2011. P9 COPY OF THE APPLICATION FOR PERMISSION OF PAYMENT OF TAX AT COMPOUNDED RATE DATED 26/4/2010. P10 COPY OF THE CERTIFICATE IN FORM NO.20B FOR PAYMENT OF RS.61,113/- DATED 30/9/2010. P11 COPY OF THE CERTIFICATE IN FORM NO.20B DATED 2/11/2010 FOR PAYMENT OF RS.75,524/- P12 COPY OF THE CERTIFICATE IN FORM NO.20F DATED NIL FOR RS.1,36,637/-. P13 COPY OF THE RETURN FOR THE YEAR 2010-11 DATED 8/3/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.15469 of 2011 ------------------------------- Dated this the 13th day of June, 2011. J U D G M E N T Ext.P8 interim order passed by the 3rd respondent appellate authority is challenged in this writ petition. Aggrieved by Ext.P1 order, through which penalty was imposed against the petitioner to the tune of Rs.7,59,620/- under Section 67(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), the petitioner had filed Ext.P4 statutory appeal before the 3rd respondent. Ext.P6 is the stay petition filed along with the appeal. On considering the interim application for stay, the 3rd respondent had issued Ext.P8 interim order granting stay, subject to condition of the petitioner remitting a sum of Rs.3 lakhs and on furnishing adequate security for the balance, within two weeks from the date of receipt of the order. 2. Ext.P8 order is challenged mainly contending that the condition was imposed in a mechanical manner without application of mind. According to the petitioner, the 2 W.P.(C).No.15469 of 2011 contentions raised against sustainability of the order imposing penalty has not been considered in its real perspective. It is contended that, eventhough the appellate authority had narrated the grounds raised, there is no independent appreciation of such grounds and the condition was imposed in a mechanical manner merely observing that the appellant had made out a prima face case for granting condition of stay. The non reflection of any discussion on the merits of the contentions as well as non mentioning of any reason for imposing the condition will vitiate the interim order, is the submission. 3. According to the petitioner, the alleged reasons for imposition of penalty regarding non disclosure of the turn over pertaining to the works contract, is absolutely incorrect and has no basis. It is further contended that there was ample evidence available to the effect that the tax portion was already deducted by the awarder of the work and payment was made to the department. 4. However, since the statutory appeal is pending 3 W.P.(C).No.15469 of 2011 consideration and disposal, I am not proposing to enter upon any findings regarding merits of such contention. On a perusal of Ext.P8 it is evident that, even though the appellate authority had illustrated the main contentions, the order is lacking any reflection with respect to consideration of the merits of such contentions. Nor there is any reason mentioned for imposing condition for payment of part of the amount. As such Ext.P8 will not stand the test of sustainability, in view of the settled legal precedents, which compel the appellate authorities to issue reasoned orders while granting interim reliefs. 5. However, I am not proposing to remit the matter back to the appellate authority for passing fresh orders, in view of the fact that, the appeal itself is pending consideration and disposal and in order to avoid multiplicity of proceedings. Ends of justice will be achieved, if a direction is issued for an early disposal of the appeal and till then to restrain recovery steps, subject to imposition of a less rigorous condition. 4 W.P.(C).No.15469 of 2011 6. Accordingly, the writ petition is disposed of directing the 3rd respondent to consider and dispose of Ext.P4 appeal, after affording an opportunity of hearing to 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. 7. Till such time the appeal is disposed as directed above, in modification of the conditions imposed in Ext.P8, the respondents are restrained from recovering the amounts covered under Ext.P1 order, subject to condition of the petitioner remitting a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) and on furnishing security bond for the balance amount, within one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, Judge ami/