IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21828 of 2010(C)
1. M.SIDDIQUE, PROP.MALAPPURAM AUTOMOBILES,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER, MANJERI.
... Respondent
2. DEPUTY COMMISSIONER(APPEALS),
3. INSPECTING ASSISTANT COMMISSIONER,
For Petitioner :SRI.N.MURALEEDHARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :13/07/2010
O R D E R
P.R.RAMACHANDRA MENON, J.
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W.P.(C). NO.21828 OF 2010
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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