IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 8239 of 2011(D) ------------------------- PETITIONER(S): --------------- METRO ORTEM LTD., JUBILEE ROAD, EEC MAIN MARKET, NETTOOR P.O., MARADU, ERNAKULAM, PIN-682 040, REPRESENTED BY ITS BRANCH-IN-CHARGE, SRI. E.V.BALAKRISHNAN. BY ADVS. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, IST CIRCLE, MATTANCHERRY-682 002. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM-682 015. 3. COMMERCIAL TAX INSPECTOR (RR) O/o. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY-682 002. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV.SRI.V.K.SHAMSUDHEEN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.8239 of 2011 ------------------------------- Dated this the 22nd day of March, 2011. J U D G M E N T Ext.P6 interim order passed by the appellate authority, while disposing a stay petition filed along with an appeal, which is instituted against assessment completed with respect to the years 2008-09, is the subject matter of challenge in this writ petition. Assessment for the year concerned was completed invoking section 25(1) of the Kerala Value Added Tax Act (KVAT Act), which according to the petitioner is vitiated by non compliance of the mandatory procedure prescribed. However, the assessment was challenged in appeal and in the accompanying application the petitioner sought for stay of collection of amounts in dispute. By Ext.P6 order, interim stay was granted by the appellate authority insisting upon the petitioner to make payment of 40% of the amounts due and to furnish security bond for the balance. 2 W.P.(C).No.8239 of 2011 2. According to the petitioner, the condition was stipulated in a mechanical manner without proper application of mind. It is contended that the appellate authority had failed in considering merits of the contentions raised and in appreciating prima facie sustainability of such contentions. Hence, the interim order is unsustainable in the eye of law, is the contention. 3. On a perusal of Ext.P6 it is evident that, the appellate authority had illustrated all the main contentions raised and had also perused the documents produced at the time of hearing. Considering those contentions, the appellate authority had arrived at a conclusion that there is a prima face case established, which need be examined in detail. However, it is evident that the order impugned does not reflects appreciation of merits of the contentions nor it reflects any reasoning with respect to the imposition of the condition. It is obligatory on the part of appellate authorities to mention specific reasons while granting interim orders with respect to imposition of conditions. 3 W.P.(C).No.8239 of 2011 Even though the order could not be termed as one issued without application of mind, it suffers from lack of proper explanation regarding merits of the contentions as well as reasoning for imposition of conditions. 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 disposal before that authority. Interest of justice will be served if a direction is issued to the appellate authority to dispose of the appeal on an early basis and till then to restrain recovery on the basis of a less rigorous condition to be imposed. 4. In the result, the writ petition is disposed of directing the Assistant Commissioner (Appeals), Commercial Taxes, Ernakulam, 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 2 months from the date of receipt of a copy of this judgment. 5. Till such time, the appeal is disposed of, in 4 W.P.(C).No.8239 of 2011 modification of Ext.P6, the respondents are restrained from recovering the amount in dispute, subject to condition of the petitioner making payment of 1/4th of the total amount due and on furnishing security bond for the balance amount within 2 weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, Judge ami/