IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 27626 of 2009(W) -------------------------- PETITIONER(S): --------------- M.THAJUDEEN, TAJ HALAL CHICHEN, KALLATTU MUKKU, MANACAUD, THIRUVANANTHAPURAM-695009. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): --------------- 1. INTELLIGENCE OFFICER, SQUAD I, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE DY.COMMISSIONER (APPEALS), THIRUVANANTHAPURAM. 3. COMMERCIAL TAX OFFICER, SECOND CIRCLE, PEROORKADA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.27626 OF 2009 ------------------------------ Dated this the 1st day of October, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against the condition imposed in Ext.P5 interim order of stay granted by the 2nd respondent Appellate Authority, issued on the stay petition filed along with Ext.P3 appeal which is filed against order imposing penalty with respect to the year 2006-07. The petitioner is a dealer in live chicken. The order of penalty was imposed pursuant to an inspection conducted by the 1st respondent at the place of business of the petitioner, on 30.11.2006. On detection of unaccounted stock the petitioner was given notice for production of Books of Accounts and on verification of the records it is revealed that the appellant is liable to take registration and to pay tax because the appellant had turnover crossing the limit prescribed under the statute. Having convinced that the appellant failed to take registration and in paying tax, penalty as provided under Section 67(1) of the Kerala Value Added Tax Act, 2003 to the tune of Rs.13,25,536/- was imposed. According to the petitioner, the penalty was imposed without affording sufficient opportunity to the petitioner to dispute the liability and there are a lot of errors in the calculation adopted for arriving at the turnover, on which the W.P.(C).27626/09-W 2 penalty was computed. The attack against Ext.P5 order is that it is a non-speaking order and is issued without application of mind. It is contended that the appellate authority had failed in adverting to the grounds raised in the appeal and the condition of 50% payment was imposed in a quite mechanical manner. 2. On a perusal of Ext.P5 it is noticed that the appellate authority has not at all gone into the contentions of the appellant. After briefly narrating the grounds raised in the appeal the authority had proceeded to issue the order imposing payment of 50% of the penalty as a pre-condition, in a mechanical manner. It is settled law through various precedents of this court and the hon'ble apex court that, while disposing the interlocutory applications, the statutory appellate authority are bound to issue speaking orders on proper application of mind, with due advertence to the contentions raised in the appeal. The interim orders should reflect proper application of mind and advertence to the grounds raised in the appeal. Viewed in the above angle, Ext.P5 order cannot be termed as one sustainable in the eye of law. 3. Therefore I am inclined to quash Ext.P5 and I do so. Considering the contentions raised in the appeal, I am of the view that the writ petition can be disposed of directing the 2nd respondent to consider and pass orders on Ext.P3 appeal as early W.P.(C).27626/09-W 3 as possible. 4. The petitioner further contends that the 3rd respondent had now initiated steps to finalise the assessment based on the order imposing penalty which is under challenge in the appeal. According to the petitioner if the assessment is finalised before disposal of the appeal, that will cause severe prejudice. 5. Under the above circumstances the writ petition is disposed of directing the 2nd respondent to consider and pass orders on Ext.P3 appeal after affording an opportunity of hearing to the petitioner as early as possible at any rate within a period of 6 weeks from the date of receipt of a copy of this judgment. The respondents are directed to keep in abeyance realisation of the amount covered under Ext.P2 order till the appeal is disposed of as directed above, on condition of the petitioner remitting an amount of Rs.3,00,000/- (Rupees Three Lakhs only) within a period of 3 weeks from today. There will be a further direction to the 3rd respondent to keep in abeyance finalisation of the assessment based on Ext.P2 order till Ext.P3 is disposed of by 2nd respondent. C.K.ABDUL REHIM, JUDGE. okb