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Judgment
Justice P.R. Ramachandra Menon
Exts.P1 to P3 assessment orders in respect of the assessment years 2008-09 to 2010-11 have been subjected to challenge in Exts.P5, P6 and P7 appeals, along with Ext.P5(b), P6(b) and P7(b) petitions for stay. After considering the interlocutory applications for stay, the appellate authority passed Ext.P11 order in respect of the assessment year 2008-09, whereby a complete stay has been granted, on being satisfied with the merits involved. However, coming to the other two assessment orders, a common order was passed as per Ext.P12, holding that the petitioner was liable to satisfy 50% of the amount due and furnish security for the balance amount during the pendency of the appeal, so as to avail the benefit of interim stay, the correctness of which is under challenge in this writ petition. The second respondent has filed a statement seeking to sustain the course and events, pointing out that the assessment year 2008-09 stands on a different footing, than the other two years, which is stated as the reason for mulcting the liability to an extent of 50%. The petitioner has filed a reply affidavit as well, seeking to rebut the said statement.
After hearing both the sides, this Court finds that, the nature of contention raised by the petitioner in respect of the assessment years in question are more or less similar, as extracted by the appellate authority. The observation by the appellate authority in Ext.P11 in respect of the year 2008-09 to grant a full stay, is as follows :
The assessing authority completed the assessment by calculating the compounded tax payable at 10% of the sales turnover reported for the year 2008-09 amount to Rs.3,29,75,615/-. The contention of the appellant is that the above calculation is against the provisions of Section 7 of the KGST Act 1963. There is merit in this contention. Considering the above aspects and the payments already made by the appellant, a prima-facie case for a full stay on conditional basis is established in this case.
In respect of the years 2009-10 and 2010-11, the reasoning in Ext.P12 order appears to be in the following manner:
The assessing authority completed the assessments u/s 17(3) of the Act by calculating the turnover tax payable @ 115% of the total payable as conceded in the return for the previous year 2008-09. The contention of the appellant is that he is liable to pay turnover tax at compounded rate that is at 115% of the turnover tax paid for the previous year. The calculation of the turnover tax payable by the assessing authority is on the basis of Section 7(b) of the KGST Act 1963. The sustainability or otherwise of the contentions advanced by the appellant can be considered at the time of hearing of appeal and on verification of the related records. Considering the entire facts of the case, the appellant has established a prima-facie case for a conditional stay.
After considering the materials on record, this Court finds it difficult to accept the proposition mooted by the respondents, seeking to sustain the impugned orders, by adding more reasons by way of the statement filed, which are not discernible from the orders.
In the said circumstances, this Court finds that the matter requires to be reconsidered by the appellate authority, to have a proper understanding as to the actual facts and figures. Accordingly, Exts.P11 and P12 orders are set aside and the second respondent is directed to reconsider Exts.P5(b), P6(b) and P7(b) applications for stay afresh, by passing a ''speaking order'', in accordance with law, after hearing the petitioner, as expeditiously as possible, at any rate within ''one month'' from the date of receipt of a copy of this judgment. All further proceedings pursuant to Exts.P9 and P10 shall be kept in abeyance till such time.
Writ petition is disposed of.