IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 21828 of 2010(C) ---------------------------------------- PETITIONER(S): ------------------------ M.SIDDIQUE, PROP.MALAPPURAM AUTOMOBILES, VARANGODE, MALAPPURAM. BY ADVS. SRI.N.MURALEEDHARAN NAIR, SRI.T.G.ABHILASH. RESPONDENT(S): --------------------------- 1. COMMERCIAL TAX OFFICER, MANJERI, MALAPPURAM - 680 486. 2. DEPUTY COMMISSIONER(APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KOCHI - 15. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM AT MANJERI - 680 486. R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.R.RAMACHANDRA MENON, J. --------------------------------------------- W.P.(C). NO.21828 OF 2010 ---------------------------------------------- Dated this the 13th day of July, 2010. JUDGMENT Challenging Ext.P1 assessment order for the months of April 2009 and May 2009, the petitioner has preferred Ext.P2 appeal along with Ext.P3 petition for stay. After considering the materials on record, the appellate authority passed Ext.P5 interim order, holding that the petitioner has a prima facie case; however imposing a condition directing the petitioner to satisfy 50% of the disputed liability and to furnish sufficient security bond for the balance amount, so as to avail the benefit of interim stay during the pendency of the appeal. The petitioner is challenging the sustainability of the condition as aforesaid. 2. The learned counsel of the petitioner submits that the appellate authority has very much observed in Ext.P5 that the connected records have been perused, which reveals that the entire purchases effected by the petitioner have been accounted in the coming month and revised returns have been filed subsequently and hence that the W.P.(C). NO.21828/2010 2 assessment completed on the basis of the alleged suppression is not 'fully' justifiable. This being the position there should have been any such condition; submits the learned counsel. 3. Heard the learned Government Pleader as well. 4. Going by the materials on record, it is evident that the factual position as projected by the petitioner has been very much taken note of by the appellate authority, holding that there is a prima facie case. Yet another aspect to be noted is that, there are two other vital grounds for the petitioner, as taken note of by the appellate authority in Ext.P5 order itself, ie, with regard to the claim for 'input tax' and also with regard to the gross profits estimated at the rate of 15% which is stated on the higher side as against 7%, as per the accounts. Absolutely no discussion has been made by the appellate authority in this regard, while fixing the extent of condition in Ext.P5 interim order. This being the position, this Court finds that there is no proper application of mind on the part of appellate authority while imposing the condition and that the finality could be arrived W.P.(C). NO.21828/2010 3 at, only on passing final orders in this regard. 5. Accordingly, the 2nd respondent is directed to consider and pass final orders on Ext.P2 appeal in accordance with law, of course after hearing the petitioner, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. All further coercive proceedings pursuant to Ext.P6 shall be kept in abeyance, on condition that petitioner deposits '25%' of the liability and furnishes security for the balance amount within two weeks from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE. mns