The petitioner is aggrieved of the condition imposed by the appellate authority/second respondent, while granting interim stay during pendency of appeal preferred by the petitioner against Ext. P1 series assessment orders. The case of the petitioner is that, the assessment has been finalized by the first respondent without any regard to the actual facts and figures. Hence Ext. P1 series assessment orders are under challenge by way of Ext. P2 series appeals before the second respondent. After considering I.As for stay, the second respondent passed Exts. P3 series conditional orders in respect of assessment years 2005-'06, 2006-'07 and 2007-'08 directing the petitioner to satisfy 35%, 30% and 35% respectively of the balance tax, so as to avail interim stay during pendency of appeals. This in turn is under challenge in this writ petition.
2. When the matter came up for consideration on 15.10.2014, the following interim order was passed :
“Challenge is against the condition imposed by the second respondent while granting interim stay during pendency of appeal. The learned counsel for the petitioner submits that grievance is mainly with regard to Ext. P3(a). It is pointed out that Ext. P1(a) assessment order was solely based on the penalty imposed upon the petitioner. But the penalty was set aside subsequently as per Ext. P7, which has not been considered either by the assessing authority or by the appellate authority.
The learned Government Pleader seeks fro time to ascertain the factual. Post next week.
3. Based on the submission made by the learned counsel for the petitioner that the grievance now sought to be pressed before this Court will stand confined to Ext. P3(a) order, the learned Government Pleader was required to get instructions with regard to the factual position narrated in the writ petition.
4. The learned counsel for the petitioner submits that Ext.
P1 (a) assessment order was passed merely based on the 'penalty' imposed upon the petitioner. This penalty was sought to be challenged by filing appeal before the second respondent and that the same was intercepted by the said respondent, setting aside the order of penalty vide Ext. P7 order dated 19.02.2013. This being the position, there is absolutely no rhyme or reason in fixing the quantum based on penalty as per Ext.P1(a) and hence the condition imposed by the second respondent vide Ext. P3(a) is not correct or sustainable.
5. The learned Government Pleader submits that penalty was imposed upon the petitioner in respect of two different years and the order stated as passed in favour of the petitioner vide Ext. P7 is only in respect of 2006-'07. The learned counsel for the petitioner points out that, there is a stay granted by the Tribunal as per order dated 30.04.2013, with regard to other instance.
6. In the above circumstances, this Court finds that the case projected by the petitioner as per the concerned appeal requires to be finalized on merit. Accordingly, the petitioner is required to satisfy the condition imposed by the second respondent vide Ext. P3 and P3(b) orders, for which a further period of 'two weeks' is granted. In respect of Ext. P3(a), the condition imposed stands dispensed with and the petitioner shall continue to avail the benefit of interim stay during pendency of Ext. P2 series appeals.
The petitioner shall produce a copy of this judgment along with copy of the writ petition before the second respondent for further steps.
The Writ Petition is disposed of.
kmd Sd/-
P. R. RAMACHANDRA MENON, (JUDGE)