K.Moosa v. The Commercial Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 6TH DAY OF JANUARY 2015/16TH POUSHA, 19361 WP(C).No. 291 of 2015 (J) -------------------------- PETITIONER :

-------------------- K.MOOSA, PROPRIETOR, M.M. ELECTRONICS, KADAYIL HOUSE VATTOMKULAM BY ADVS.SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S) :

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1. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, PONNANI - 679577.

2. THE ASSISTANT COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD - 678001 R1 & R2 BY GOVT. PLEADER SMT. SOBHA ANNAMMA EAPPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mn ...2/-

WP(C).No. 291 of 2015 (J) ------------------------------------ APPENDIX PETITIONERS' EXHIBITS :

------------------------------------- EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE IST RESPONDENT FOR THE YEAR 2011-12 DATED 30-09-2014. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 07-11-2014.

EXHIBIT P3 TRUE COPY OF THE STAY PETIITON FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 07-11-2014.

EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER PASSED BY THE 2ND RESPONDENT, DATED 10-12-2014.

EXHIBIT P5 TRUE COPY OF THE DEMAND NOTICE IN FORM NO 12 ISSUED BY THE IST RESPONDENT FOR THE YEAR 2011-12 DATED 17-10-2014 RESPONDENT(S)' EXHIBITS : NIL -------------------------------------------------------------- //TRUE COPY// P.A. TO JUDGE Mn

A.K.JAYASANKARAN NAMBIAR, J.

................................................. ............................................... Dated this the 6th day of January, 2015

JUDGMENT

Against Ext.P1 Assessment order, petitioner preferred Ext.P2 appeal before the second respondent. Along with the appeal, he had also preferred Ext.P3 stay petition. The second respondent has now passed Ext.P4 interim order on the stay petition directing the petitioner to pay 50% of the amount as a condition for the grant of stay against recovery of the balance amounts confirmed against the petitioner vide Ext.P1 assessment order.

2.In the writ petition, the petitioner impugns the said conditional order of stay, inter alia, on the ground that the second respondent had not exercised his discretion validly while passing the said order.

3.Heard Sri.N.Muraleedharan Nair, the learned counsel appearing for petitioner and Smt.Sobha Annamma Eappen, the learned Government Pleader appearing for respondents.

4.On a consideration of the facts and circumstances of the case and submissions made across the bar, I dispose the writ petition with the following directions:- (i) In Ext.P4 order, the second respondent does not state reasons as to why the petitioner was required to deposit the amounts as a condition for the grant of stay. This Court has held in Archana Agencies vs. Commecial Tax Officer (2014 (2) KLT 715) that an authority considering a stay petition is bound to give reasons even while granting conditional stay. (ii) Ext.P4 order is quashed and the second respondent is directed to reconsider the matter and pass fresh orders in the stay petition filed by the petitioner, within one month from the date of receipt of a copy of this judgment after affording an opportunity of hearing to the petitioner.

(iii) Recovery steps, initiated against the petitioner shall be kept in abeyance till such time as fresh orders

are passed by the second respondent, as directed above, and communicated to the petitioner.

Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE AMV/07/01/