IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25832 of 2010(D)
1. M/S.KUNNATHANAM & CO.,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER,
... Respondent
2. ASST. COMMISSIONER (AA),
3. DY. COMMISSIONER (APPEALS),
For Petitioner :SRI.HARISANKAR V. MENON
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :18/08/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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WP(C) NO. 25832 OF 2010
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Dated this the 18th day of August, 2010
JUDGMENT
The petitioner is stated as aggrieved of the condition imposed by the
First Appellate Authority, vide Ext.P6, directing the petitioner to satisfy 50% of
the disputed tax and interest for the assessment year 2005-06, so as to avail
the benefit of interim stay during the pendency of appeal.
2. The sequence of events narrated in the Writ Petition shows that,
being aggrieved of the assessment, the petitioner preferred an appeal before
the 3rd respondent and after considering the plus and minus points, Ext.P2
order was passed, whereby the liability was substantially reduced. However,
being aggrieved of the extent of relief obtained, it was taken further by filing a
second appeal before the Tribunal, which culminated in Ext.P3 order. The
case of the petitioner is that, the Tribunal remanded the matter for fresh
consideration as specified therein, mainly on the grounds of valuation and also
without any regard to the fixation of turnover, based on the consumption of
electricity. It is contended that, though the assessing authority has passed
revised order as borne by Ext.P4, the same was not in conformity with the
specific direction given by the Tribunal vide Ext.P3 and hence was subjected
to challenge by filing further appeal before the 3rd respondent along with an
I.A. for stay. After considering the I.A. for stay, the 3rd respondent has passed
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Ext.P6 order, wherein the impugned condition has been imposed, which in
turn is under challenge.
3. The learned counsel for the petitioner submits that, there is a
positive finding in Ext.P6 order passed by the 3rd respondent that the
assessing authority has not fully complied with the directions of the Tribunal. It
is also brought to the notice of this Court that the specific issue with regard to
the ‘valuation’ has not been considered in Ext.P4. It is further pointed out, that
in the first round of litigation, i.e., when the matter was pending before the 3rd
respondent earlier, the petitioner was made to deposit a sum of Rs.20 lakhs
and this being the position, the condition now imposed is rather onerous and
not liable to be satisfied by the petitioner under any circumstance.
4. The learned Government Pleader submits with reference to the
contents of Ext.P6 that the actual facts and figures have been clearly dealt
with by the appellate authority in the penultimate paragraph of the order,
whereby it has also been observed that, but for the ‘certificate’ produced by
the Assistant Engineer, KSEB, Electrical Section, Nemom showing the details
of other machines installed, absolutely no statistics of electrical consumption
of the other motors used were produced and this being the position, the
course pursued by the assessing authority estimating 10% of the total energy,
as used by the other motors is perfectly justified. The learned Government
Pleader submits that Ext.P6 is very much a ‘speaking order’ and does not call
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for any interference.
5. However, the fact remains that Ext.P3 order passed by the
Tribunal contains two specific directions and the manner in which the
assessment order is to be finalised by the assessing authority. With regard to
the aspect of ‘valuation’, it does not appear to be considered and the factual
position in this regard has been noted by the appellate authority itself in
Ext.P6 order, wherein a positive inference has been made that the assessing
authority has not fully complied with the direction given by the Tribunal. In the
said circumstance, the extent of liability now fixed upon the shoulders of the
petitioner to satisfy 50% of disputed amount is liable to be scaled down.
6. Considering the facts and circumstances, this Court finds it fit and
and proper to permit the petitioner to avail the benefit of interim stay, on
condition that the petitioner deposits ‘1/3’ of the disputed tax, instead of 50%
now ordered by the 3rd respondent and furnishes security in respect of the
balance amount during the pendency of the appeals. Since the time stipulated
in Ext.P6 is already over, the petitioner is permitted to satisfy the said liability
within a further period of ‘three weeks’.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc