IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 31124 of 2009(I) --------------------------------------- PETITIONER(S): ------------------------ M/S.EVERSHINE BUILDING MATERIAL, ORKATERI, REPRESENTED BY MANAGING PARTNER K.E.ISMAIL, S/O.MOOSA, KIZHAKKE EDORI-ORKATTERI, VATAKARA. BY ADV. MR.ZUBAIR PULIKKOOL RESPONDENT(S): ------------------------- 1. COMMERCIAL TAX OFFICER, VATAKARA. 2. DEPUTY COMMISSIONER (APPEAL), COMMERCIAL TAXES, KOZHIKODE. BY GOVT. PLEADER MR.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.31124 OF 2009 ------------------------------ Dated this the 3rd day of November, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against Ext.P6 order issued by the 2nd respondent appellate authority, on a stay petition filed along with a statutory appeal. Aggrieved by Ext.P1 order of assessment, the petitioner had preferred Ext.P4 appeal before the 2nd respondent. In the appeal the petitioner sought for stay of collection of the tax amount in dispute, till disposal of the appeal. Ext.P6 is the interim order passed on the stay petition. 2. Contention of the petitioner is that the return filed by the petitioner was not accepted based on the fact that unaccounted purchases were detected on verification of the purchase invoice data uploaded by the dealer in the KVATIS. According to the dealer it is only due to a mistake committed by M/s. Berger Paints, who is supplying goods to the petitioner. It so happened that the TIN Number of the petitioner was quoted with respect to purchases made by another dealer from M/s.Berger Paints. The petitioner had produced Ext.P3 letter issued by M/s. Berger Paints showing details about the mistake W.P.(C).31124/09-I 2 committed. In Ext.P3 it is specifically stated that M/s. Berger Paints have already corrected the mistake and informed their assessing authority about the same. Contention of the petitioner is that Ext.P3 letter and other supporting documents were produced before the appellate authority at the time of hearing of the stay petition. On a perusal of Ext.P6 order it is noticed that the appellate authority had observed that the appellant has not produced any evidence from the particular dealer to prove that they have effected purchase and accounted the transaction, and therefore the evidence produced is not conclusive regarding the mistake. 3. It is noticed that with respect to the additions made in Ext.P1 order of assessments, the assessee had a case that the transaction was uploaded in the system as purchase made by the petitioner only due to a bonafide mistake on the part of the supplier, which was admitted and corrected by the supplier themselves. Therefore contention of the petitioner is that the condition stipulated for granting interim stay is causing severe prejudice and irreparable injuries. 4. Having considered the fact that the impugned order was issued by the statutory appellate authority in exercise of its discretion in granting stay, normally this court would not have interfered with the order. But in the case at hand it is evident W.P.(C).31124/09-I 3 that the entire addition is made based on a particular transaction, which the supplier had certified as not effected in the name of the petitioner. Further the supplier had informed that the mistake was corrected and the assessing authority of the supplier was duly intimated about the correction. Under such circumstances I am of the opinion that there is a strong prima facie case established by the petitioner, which need further examination by the appellate authority, at the time of disposal of the appeal. Therefore interest of justice will be served if the appellate authority is directed to consider and pass orders on the appeal itself on an early date. 5. Hence the writ petition is disposed of directing the 2nd respondent to consider Ext.P4 appeal after affording an opportunity of hearing to the petitioner as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Ext.P6 is hereby quashed and the respondents are directed to keep in abeyance realisation of the amounts covered under Ext.P1 pending disposal of the appeal as directed above. C.K.ABDUL REHIM, JUDGE. okb