IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 WP(C).No. 5609 of 2011(A) ------------------------- PETITIONER(S): --------------- MUSTANG MOTORS (PVT.)LTD., N.H.BYE-PASS ROAD, NEAR EMC, VENNALA.P.O., ERNAKULAM DISTRICT. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT(S): --------------- 1. ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE-III, ERNAKULAM-682 015. 2. THE DY.COMMISSIONER (APPEALS), THEVARA, ERNAKULAM-682 015. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM-682 015. BY ADV.SRI.C.K.GOVINDAN, Sr.GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.5609 of 2011 ------------------------------- Dated this the 28th day of February, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P5 interim order passed by the appellate authority, on a stay petition filed along with a statutory appeal. Through the impugned order, an interim stay was granted against collection and recovery of the tax amount in dispute, pending disposal of the appeal, subject to condition of the petitioner remitting 50% of the total amount due and on furnishing security for the balance amount. According to the petitioner, the insistence for payment of the 50% of the amount was imposed in a mechanical manner without proper application of mind and without advertance to the main contentions raised in the appeal. 2. On a perusal of the impugned order Ext.P5, I notice that the appellate authority had elaborately illustrated all the contentions raised and in advertence to such contentions the authority has expressed its view, on arriving at prima facie 2 W.P.(C).No.5609 of 2011 conclusions regarding merits of such contentions. Learned counsel for the petitioner submits that, the main contention raised with respect to collection and payment of tax for materials which were supplied in execution of the contract has not been reckoned by the assessing authority. It is the contention that the appellate authority had failed to take note of the grounds raised in this regard and if it would have been considered, the authority might have convinced that the liability of the petitioner would be much lesser than the amount now imposed, rather there may not be any further liability. 3. Imposition of a condition while granting interim order, is a matter coming within the discretionary powers of an appellate authority. Going by the impugned order in the case at hand, I am of the view that it could not be said that the order was issued on a total non-application of mind or in any cryptic manner. The order in question illustrates all the grounds raised and also consideration of such grounds by the appellate authority. Therefore, it is not proper and 3 W.P.(C).No.5609 of 2011 justifiable on the part of this Court to look into merits of each of the contentions in order to evaluate sustainability of the interim order. 4. However, learned counsel for the petitioner submitted that the conditions imposed is highly rigorous in nature and is creating onerous liability putting it impossible to be complied with. Considering the practical difficulties expressed by the petitioner, I am of the view that, even though interference with Ext.P5 is not proper, some indulgence can be shown in reducing rigorousness of the condition imposed. 5. Accordingly, the writ petition is disposed of directing the second respondent appellate authority to consider and dispose of Exts.P2(a) to P2(c) appeals, 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. 6. Till such time the appeals are disposed of, in modification of Ext.P5 order, the recovery steps is directed 4 W.P.(C).No.5609 of 2011 to be kept in abeyance subject to condition of the petitioner remitting 1/4th of the total amount due within a period of two weeks from the date of receipt of a copy of this judgment and also on furnishing security bond for the balance amount within such time. C.K.ABDUL REHIM, Judge ami/