IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27042 of 2009(A)
1. M/S.ESQUIRE INN,
... Petitioner
Vs
1. INTELLIGENCE OFFICER,
... Respondent
2. INTELLIGENCE OFFICER,
3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :25/09/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P(C). No.27042 of 2009
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Dated this the 25th day of September, 2009
JUDGMENT
Challenge in this Writ Petition is against Exts.P5 and P6
interim orders issued by the 3rd respondent on stay petitions filed
along with Exts.P3 and P4 appeals, arising out of Exts.P1 and P2
orders imposing penalty. By the impugned orders, the appellate
authority while granting interim stay had imposed condition for
payment of 50% of the amount in dispute and for furnishing
proper security for the balance amount.
2. The orders of penalty were issued pursuant to an
inspection conducted at the business place of the petitioner,
which is a Bar Hotel. During the inspection, 103 bills were
recovered and on the basis of average sale value of 13 bills,
gross profit is worked out at 54% on the entire turnover. But the
gross profit disclosed by the petitioner was 31.8% only. The
main ground raised in the appeals is that, the method adopted by
the authority in working out gross profit of 54% on the entire
turnover is not realistic. The rate of gross profit alleged is only
the average gross profit in respect of 13 bills recovered, which
W.P(C). No.27042 of 2009 2
was arrived at by taking purchase value of 60 ml of those items
and sale value of the items covered in the sales of two days, in 13
bills out of the 103 bills. It is contended that eventhough the
appellate authority while considering the interlocutory
application had adverted to the above contentions, he has not
considered merits of such contentions and without there being
any reasoning, condition for payment of 50% was imposed in a
quite mechanical manner. Hence it is contended that the orders
suffers from defect of non-application of mind and non-
advertence to the contentions in its real perspective.
3. On a perusal of Exts.P5 and P6, it is noticed that after
elaborating the contentions, the appellate authority had
observed that the appellant had made out a prima facie case for
conditional stay. But without mentioning any reason, quite
mechanically, the condition for payment of 50% is imposed.
Considering various parameters prescribed through different
precedents of this Court and the Honourable apex Court, the
impugned orders cannot be considered as one issued after
proper application of mind and after proper advertence to the
grounds and contentions raised in the appeals. Hence I am
inclined to interfere with the orders.
W.P(C). No.27042 of 2009 3
4. However, considering the fact that suppression of
turnover is alleged while imposing penalty, the matter needs
elaborate adjudication in the appeals. Therefore it is only just
and proper to direct the appellate authority to have disposal of
the appeals as early as possible, and to impose reasonable
condition for granting stay till then.
5. In the result, the Writ Petition is disposed of directing
the 3rd respondent to consider and dispose of Exts.P3 and P4
appeals as early as possible after affording opportunity of
hearing to the petitioner, at any rate within a period of two
months from the date of receipt of a copy of this judgment. The
respondents are directed to keep in abeyance all further steps
for realisation of the amount covered under Exts.P1 and P2
orders of penalty till the disposal of the appeals, on condition
that the petitioner makes deposit of an amount equivalent to
25% of the penalty within a period of three weeks from today
and also on furnishing proper security for the balance amount.
C.K.ABDUL REHIM
JUDGE
rtr/-