K.S. Radhakrishnan, J.
1. Writ petition was preferred by the appellant herein under Article 226 of the Constitution of India seeking a writ of certiorari to quash exhibit P10 order passed by the Deputy Commissioner (Appeals) on March 1, 2006 on the stay petition preferred by the writ petitioner in an appeal preferred by him under Section 34 of the Kerala General Sales Tax Act, 1963. Exhibit P10 order reads as follows:
Collection of balance tax for the years 2000-01 and 2001-02 is stayed till the disposal of the appeals on condition that the appellant remits 50 per cent of the balance tax due and furnishes security for the balance amount to the satisfaction of the assessing authority within two weeks from the date of this order. If the conditions of stay are not fulfilled, the assessing authority is at liberty to recover the entire demand ignoring this order of stay.
2. Aggrieved by the said order directing the petitioner to remit 50 per cent of the balance tax due and furnish security for the balance amount, writ petition was preferred beforethis Court. Learned single judge found no reason to interfere with the order passed by the appellate authority and dismissed the writ petition. Aggrieved by the same this appeal has been preferred.
3 Shri A. Kumar, counsel appearing for the appellant submitted that learned single judge was not justified in dismissing the writ petition since appellate authority had not passed a reasoned order after application of mind. Counsel submitted, direction to remit 50 per cent of the balance tax due and to furnish security for the balance amount cannot be sustained in the facts and circumstances of this case. Counsel referred to the decision of a Division Bench ofthis Court in Alok Spices v. Deputy Commissioner (Appeals), Sales Tax & Agricultural Income-tax [1988] 71 STC 347 and contended that the order passed by the appellate authority goes contrary to the dictum laid down bythis Court. Counsel also made reference to the decision in M.V.R. Industries Limited v. Intelligence Officer, Squad No. I . Sri Georgekutty Mathew, learned Special Government Pleader for Taxes, on the other hand contended that there is no justification in interfering with the interim order passed by the appellate authority. Counsel submitted, looking at the interim order as a whole, it is evident that the appellate authority has stated reasons and the learned judge was right in dismissing the writ petition.
4 We fully endorse the views expressed in the decisions cited supra. However, we may hasten to add that granting of interim order is discretionary depending upon the facts and circumstances of each case. Of course authorities have to exercise their discretion in a just and proper manner taking into consideration all relevant aspects brought before it. This is a case where assessee has not filed annual return for the year 2001-02. Further, in spite of notices dated September 17, 2005 and November 19, 2005 for production of accounts, assessee has failed to produce the accounts or adduce any evidence in support of the turnover conceded in the monthly returns. Materials made available in the assessment file revealed check-post declarations and it was also found that large scale transactions were effected during 2001-02. Further it was also noticed that the assessee had effected large scale sale of diaries and other printed materials at Sabarimala Sannidhanam and Pampa during Sabarimala season. The assessee has also not submitted audited statement of accounts and certificates in form Nos. 50A and 50B as per Section 27A of the Kerala General Sales Tax Act, 1963. Turnover conceded during the year 2001-02 through the monthly returns was not proved with evidence including books of account. Under such circumstances the assessing authority rejected the returns as incorrect and incomplete.
5. The assessing authority issued pre-assessment notice dated December 28, 2005 under Section 17(3) of the Act which was duly served on the assessee on December 30, 2005. The assessee has neither produced the books of account, nor filed objections against the proposal. Under such circumstances the assessing authority had to complete the assessment to the best of its judgment lest the assessment proceeding would get barred by limitation by March 31, 2006. It is against the abovementioned order the assessee preferred appeal under Section 34 of the Act before the appellate authority and also filed petition for stay in form 39C. The assessee urged the following grounds, seeking an order of stay:
While completing the assessment the officer completed the assessment to the best judgment and added 50 per cent of the returned turnover for omission and suppression. The petitioner's accountant kept changing and the records were misplaced by the petitioners and therefore, they could not produce the accounts in time. The accounts of the petitioners are available and the same are produced for verification.
Appeal has been filed against the assessment and the petitioners expect to get substantial relief in the appeal.
It is apprehended that coercive steps are being initiated to recover the balance due as per assessment order. The petitioners will be put to considerable financial hardship if coercive steps are initiated to recover the balance due as per assessment order. The petitioners will be put to considerable financial hardship if coercive steps are initiated to recover any balance, which is not legally due.
For the above and other reasons to be submitted at the time of hearing it is prayed that the balance demand be stayed till the disposal of the appeal.
6. We are of the view, no acceptable grounds have been stated by the peti-tioner before the appellate authority warranting a blanket stay. One of the reasons for seeking stay was that the petitioner's accountant was kept on changing and records were misplaced and therefore they could not produce accounts in time, not an acceptable ground for granting a blanket stay. Further it is stated that accounts of the petitioners are available and the same are produced for verification which the assessee should have produced before the assessing authority. Notices dated September 19, 2005 and November 19, 2005 were sent to the assessee for production of books of account which were not responded to. The assessee has also not responded to the pre-assessment notice. Since assessment had to be completed on or before March 31, 2006 to avoid limitation the assessing authority issued the assessment order to the best of his judgment. Further it is stated in the stay petition that the petitioners will be put to considerable financial hardship if coercive steps are initiated to recover any balance, a legally unsustainable ground in the facts and circumstances of the case. We are of the view, no cogent grounds have been stated in the petition for stay warranting a detailed consideration by the appellate authority. Therefore the appellate authority cannot be found fault with stating that no reasoned order was passed. The assessee while preferring the stay petition is expected to raise grounds which are tenable. Grounds urged must be self-sufficient and self-explanatory, and would show prima facie that the order appealed against is unsustainable in law and on facts. Grounds urged in the stay petition are totally unrelated with plea of illegality or the irregularity of the order appealed against. The dictum laid down in M.V.R. Industries Limited's case would not apply to this case. The Division Bench in that case found that the appellate authority had found a prima facie case in favour of the assessee. In Alok Spices' case [1988] 71 STC 347, the Division Bench ofthis Court held that the appellate authority shall not exercise its discretion mechanically, a principle with which we fully concur. We in this connection also refer to another Bench decision ofthis Court in West Coast Industrial Gases v. Assistant Commissioner (Assessment) [1996] KLJ (Tax Cases) 152 where the court was dealing with the application for stay of imposing penalty under Section 45A(3) of the Kerala General Sales Tax Act. The court held that when application for stay of penalty is being considered the authorities may have a slightly different approach from an application for stay of assessment proceedings. In any view, so far as the present case is concerned, we are dealing with an. assessment proceeding and hence the principle as such may not apply
7. In the facts and circumstances of the case, we do not find any reason to hold that the appellate authority has committed any error in not granting a complete stay while passing exhibit P10 order. We therefore find no ground to interfere with the judgment of the learned single judge. Appeal lacks merits and the same would stand dismissed.