Kerala High Court
M/S. Jyothi Manufacturing Industry vs State Of Kerala on 20 November, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937
WP(C).No. 17660 of 2015 (F)
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PETITIONER :
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M/S. JYOTHI MANUFACTURING INDUSTRY
AZHUYIDATHUCHIRA P.O., KAVUMBHAGOM, THRIUVALLA
PATHANAMTHITTA DISTRICT
REPRESENTED BY IT'S PROPRIETOR JYOTHILEKSHMI
AGED 51 YEARS, W/O.SOMAN PILLAI, LESKHAMI VIHAR, VENGAL
THIRUVALLA, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.K.N.RADHAKRISHNAN (THIRUVALLA)
RESPONDENT(S) :
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1. STATE OF KERALA
REP. BY SECRETARY, REVENUE DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
2. THE DISTRICT COLLECTOR
PATHANAMTHITTA, PIN-689 645.
3. THE ASSESSING AUTHORITY
THAHASILDAR, THIRUVALLA,
PATHANAMTHITTA, PIN-689 645.
R1 TO R3 BY GOVT. PLEADER SRI. LIJU V. STEPHEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-02-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 17660 of 2015 (F)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXT. P1. COPY OF REGISTRATION CERTIFICATE ISSUED BY THE JOINT
DIRECTOR OF FACTORIES AND BOILERS DATED 20/11/2013.
EXT. P2. COPY OF LICENSE FOR THE FACTORY FOR THE PERIOD OF 2015-16
FROM THE PERIGARA GRAMA PANCHAYAT DATED 6/3/2015.
EXT. P3. COPY OF THE LICENSE ISSUED BY THE FOOD SAFETY AND
STANDARD AUTHORITY OF INDIA DATED 26/5/2012.
EXT. P4. COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 13/5/2014.
EXT. P5. COPY OF THE ATTENDEE REGISTER OF THE FACTORY FOR THE
PERIOD OF 2013-14.
EXT. P6. COPY OF ASSESSMENT ORDER AND NOTICE DATED 7/4/2015.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
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A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C). No. 17660 of 2015
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Dated this the 10th day of February, 2016
JUDGMENT
The petitioner is aggrieved by Ext.P4 order passed by the 1st respondent Government, whereby his claim for exemption of the building constructed by him. has been rejected by the 1st respondent, and the consequential order of assessment (Ext.P6) that was passed by the 3rd respondent assessing the petitioner's building to building tax by applying the rates in force in the year 2015, when the assessment was completed.
The grievance of the petitioner in the writ petition is two fold. Firstly, he would contend that in Ext.P4 order of the 1st respondent, the said respondent has found against the petitioner on the issue of exemption by holding that the petitioner had employed only nine persons in his factory and there was a requirement under the Factories Act, in respect of any building used as factory where the manufacturing process was carried on with the aid of power, to employ ten or more workers so as to fall within the definition of factory for the purposes of the Factories Act, 1948. It is the case of the petitioner that, as a matter of fact, during the period in question, he was employing ten persons in the factory as evidenced -2- W.P.(C). No. 17660 of 2015 by Ext.P5 series of extracts from the muster roll, wherein, it is seen that there were at least ten persons applied in the factory of the petitioner during the relevant period. He would contend therefore that Ext.P4 order proceeds on a wrong factual premise and therefore ought to be set aside by this Court.
3. Secondly, he would contend that, even if the building of the petitioner was to be subjected to the levy of building tax, the rate of tax applicable would be the rate as on the date of completion of the building, namely, the rate applicable in 2012, when the taxable event arose, and not the rate applicable in the year 2015, which was adopted by the assessing authority. He would rely on the decision of this Court in Shoukathali v. Tahsildar [2000 (2) KLT 512] to fortify the aforesaid contention.
4. A counter affidavit has been filed by the 3rd respondent, wherein apart from denying the averments from the writ petition, it is specifically averred that, at the hearing before the 1st respondent in connection with the claim for exemption, the representative of the petitioner had produced a muster roll, which contained the names of only nine employees and the representative of the petitioner also conceded at the time of hearing on 21.12.2013, that they had only nine employees at the -3- W.P.(C). No. 17660 of 2015 relevant time. It is further stated that the rates applicable in 2015 were adopted solely for the reason that the petitioner had not produced any documentary evidence to show the date of completion of the construction of building and therefore, the rate on the date of assessment of the building was taken.
5. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.
6. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I am of the view that the first contention of the petitioner with regard to the claim for exemption must necessarily fail. As noticed in Ext.P4 order, which is impugned in the writ petition, the claim of the petitioner for exemption was rejected solely on the ground that in the documents produced before the 1st respondent at the time of hearing, it was indicated that there were only nine employees employed by the petitioner in the factory. The said document therefore, ensured that the petitioner would not get the benefit of the definition of factory under the Factories Act, for the purposes of claiming the exemption under Section 3 of the Kerala Building Tax Act. Although the petitioner relies on Ext.P5 series of extracts -4- W.P.(C). No. 17660 of 2015 from the muster roll stated to have been maintained in the petitioner's factory during the relevant period, I find that the said documents are merely self-serving documents and they do not, at any rate, contain the signatures of the persons stated to have been employed by the petitioner during the relevant period. I therefore, cannot accept the contention of the petitioner that there is evidence to suggest that there were ten or more employees working in the factory during the relevant period. I see no reason to interfere with Ext.P4 order in these proceedings under Article 226 of the Constitution of India and hence, the writ petition in its challenge against the said order is rejected.
7. As regards the second contention of the petitioner with regard to the rate of tax that has to be applied, I find that the contention of the petitioner is fortified by the decision of this Court in Shoukathali v. Tahsildar [2000 (2) KLT 512], wherein it has been held that an assessment under the Building Tax Act should be based on the rate applicable on the date of competition of the building. In the instant case, it is not in dispute that the construction of the petitioner's building has been completed by 2012, since the claim for exemption itself was raised before the 1st respondent on that basis. Going by the decision referred to above therefore, the assessment in relation to the petitioner's building -5- W.P.(C). No. 17660 of 2015 ought to be completed by adopting the rate of tax applicable as in 2012. Accordingly, I find that Ext.P6 order of assessment, to the extent it adopts the rate of tax applicable to the year 2015 as the basis of computation of tax, cannot be legally sustained. I accordingly, quash Ext.P6 order and direct the 3rd respondent assessing authority to complete the assessment in relation to the building owned by the petitioner, by applying the rate of tax applicable in the year 2012 to the plinth area determined in Ext.P6 order. The 3rd respondent shall pass fresh orders of assessment on the above basis, within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner. While issuing demand notices consequent to the assessment order passed by the 3rd respondent, the 3rd respondent shall give credit to the amounts already paid by the petitioner towards tax, during the pendency of the writ petition.
The writ petition is, therefore, allowed in part.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE das /10.02.2016