IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).No. 25832 of 2010(D) -------------------------- PETITIONER(S): --------------- M/S.KUNNATHANAM & CO., MEDANA, MALAYAM, THIRUVANANTHAPURAM DISTRICT, REP. BY MANISH THOMAS, MANAGING PARTNER. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, NEYYATTINKARA. 2. ASST. COMMISSIONER (AA), DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. DY. COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY SRI. C.K. GOVINDAN, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 25832 OF 2010 -------------------------------------------- Dated this the 18th day of August, 2010 JUDGMENT The petitioner is stated as aggrieved of the condition imposed by the First Appellate Authority, vide Ext.P6, directing the petitioner to satisfy 50% of the disputed tax and interest for the assessment year 2005-06, so as to avail the benefit of interim stay during the pendency of appeal. 2. The sequence of events narrated in the Writ Petition shows that, being aggrieved of the assessment, the petitioner preferred an appeal before the 3rd respondent and after considering the plus and minus points, Ext.P2 order was passed, whereby the liability was substantially reduced. However, being aggrieved of the extent of relief obtained, it was taken further by filing a second appeal before the Tribunal, which culminated in Ext.P3 order. The case of the petitioner is that, the Tribunal remanded the matter for fresh consideration as specified therein, mainly on the grounds of valuation and also without any regard to the fixation of turnover, based on the consumption of electricity. It is contended that, though the assessing authority has passed revised order as borne by Ext.P4, the same was not in conformity with the specific direction given by the Tribunal vide Ext.P3 and hence was subjected to challenge by filing further appeal before the 3rd respondent along with an I.A. for stay. After considering the I.A. for stay, the 3rd respondent has passed 2 WP(C) No. 25832/2010 Ext.P6 order, wherein the impugned condition has been imposed, which in turn is under challenge. 3. The learned counsel for the petitioner submits that, there is a positive finding in Ext.P6 order passed by the 3rd respondent that the assessing authority has not fully complied with the directions of the Tribunal. It is also brought to the notice of this Court that the specific issue with regard to the 'valuation' has not been considered in Ext.P4. It is further pointed out, that in the first round of litigation, i.e., when the matter was pending before the 3rd respondent earlier, the petitioner was made to deposit a sum of Rs.20 lakhs and this being the position, the condition now imposed is rather onerous and not liable to be satisfied by the petitioner under any circumstance. 4. The learned Government Pleader submits with reference to the contents of Ext.P6 that the actual facts and figures have been clearly dealt with by the appellate authority in the penultimate paragraph of the order, whereby it has also been observed that, but for the 'certificate' produced by the Assistant Engineer, KSEB, Electrical Section, Nemom showing the details of other machines installed, absolutely no statistics of electrical consumption of the other motors used were produced and this being the position, the course pursued by the assessing authority estimating 10% of the total energy, as used by the other motors is perfectly justified. The learned Government Pleader submits that Ext.P6 is very much a 'speaking order' and does not call 3 WP(C) No. 25832/2010 for any interference. 5. However, the fact remains that Ext.P3 order passed by the Tribunal contains two specific directions and the manner in which the assessment order is to be finalised by the assessing authority. With regard to the aspect of 'valuation', it does not appear to be considered and the factual position in this regard has been noted by the appellate authority itself in Ext.P6 order, wherein a positive inference has been made that the assessing authority has not fully complied with the direction given by the Tribunal. In the said circumstance, the extent of liability now fixed upon the shoulders of the petitioner to satisfy 50% of disputed amount is liable to be scaled down. 6. Considering the facts and circumstances, this Court finds it fit and and proper to permit the petitioner to avail the benefit of interim stay, on condition that the petitioner deposits '1/3' of the disputed tax, instead of 50% now ordered by the 3rd respondent and furnishes security in respect of the balance amount during the pendency of the appeals. Since the time stipulated in Ext.P6 is already over, the petitioner is permitted to satisfy the said liability within a further period of 'three weeks'. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc