Kerala High Court
M/S.Heera Construction Company(P) Ltd vs State Of Kerala on 14 September, 2010
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18544 of 2010(P)
1. M/S.HEERA CONSTRUCTION COMPANY(P) LTD.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE TAHSILDAR, TALUK OFFICE,
For Petitioner :SRI.V.AJAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :14/09/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).Nos.18544, 18555 & 18556 of 2010
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Dated this the 14th day of September, 2010
J U D G M E N T
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Challenge in all these writ petitions is against orders of assessments finalised under the Kerala Building Tax Act, 1975. According to the petitioner, they have developed properties belonging to different land owners, after entering into specific agreements with them and multi- storied residential apartment complexes were constructed on such properties. Construction of the apartments were done for and on behalf of various individuals who were intending to purchase such apartments, hereinafter referred as the intending purchasers. Specific agreements were entered by the petitioner with each of such intending purchasers, wherein they have undertaken to meet the cost of such construction for each of the apartments. It is stated that on completion of construction sale deeds were executed with respect to each such apartments in favour of individual purchasers, conferring ownership on the respective W.P.(C).18544/10 & connected cases -2- apartments, along with ownership on proportionate undivided share in the lands in question. Since each such apartment was constructed on the cost of the intending purchasers and since each such apartment is owned by the individual purchasers, the assessment of Building Tax ought to have been finalised treating each such apartment as separate building coming within the purview of Explanation 2 to Section 2(e) of the Kerala Building Tax Act, is the contention. It is further contended that inspite of the petitioner furnishing details of individual owners, the 2nd respondent had completed assessment treating the entire apartment complex as single unit and the petitioner was made liable for payment of the tax amount assessed. It is also contended that the assessments were finalised without issuing notice as contemplated under Section 9(2) of the Act. However, in the statement filed on behalf of the 2nd respondent it is contended that notices were issued under Section 9(2) before finalising the assessments, but the petitioner failed to appear for personal hearing.
2. Aggrieved by Ext.P6 (references to exhibits is on the basis of the order in which it is marked in WP(C).18544/2010) orders of assessment the petitioner had approached the 2nd W.P.(C).18544/10 & connected cases -3- respondent seeking a re-consideration of the matter. Through Ext.P8 such request was declined observing that if the petitioner is aggrieved, they can seek remedy by way of appeal as provided under the statute.
3. While considering the question regarding assessment of Building Tax on flats (apartments) contained in multi-storied residential complexes, this court in M/s.Bavasons Constructions (P) Ltd. Vs. State of Kerala (2007 (3) KLT
101) observed that the process of assessment is a quasi-judicial function and the assessing authority is guided only by provisions of the Act and should discharge such function uninfluenced by any executive order issued by the Government. In the said decision, it is held that the assessing authority should issue orders considering claims relating to each of the flats and shall consider whether there is sufficient materials available to support the claim for separate assessment as contemplated under Explanation 2 to Section 2(e). The parameters upon which such assessments need be completed are elaborately mentioned in the said decision. Learned counsel for the petitioner had also brought to my notice a letter issued by the State Government to the Deputy Commissioner of Land W.P.(C).18544/10 & connected cases -4- Revenue directing that authority to issue necessary instructions to all District Collectors in the State, to assess different apartments (flats) owned by different persons contained in multi-storied complexes, separately, treating them as individual buildings coming within the purview of Explanation 2 to Section 2(e) (Letter No:17451/SC 1/05/RD issued by the Principal Secretary to Government, Revenue (Special Cell) Department, dt:1.5.2005).
4. Eventhough the petitioner has got an effective statutory remedy by way of appeal against Exts.P6 assessment, I am prima facie convinced that while issuing the impugned assessments, the 2nd respondent has not even considered as to who is the owner of the different apartments and who had met the cost for construction of each apartments. The paramount title of such apartments, the details of assessments made by the local authority concerned, were also not seen considered while completing the assessments. Therefore, I am of the opinion that the matter needs re-consideration by the assessing authority.
5. In the result Ext.P6 in all the three writ petitions are hereby quashed. The 2nd respondent is directed to issue notice to all the individual owners of different apartments and also to W.P.(C).18544/10 & connected cases -5- the petitioner. He shall examine the question regarding separate assessment as contemplated under Explanation 2 to Section 2(e) based on documents and materials to be produced by such persons. Needless to say that while completing such assessments the authority shall take due notice of the parameters enumerated in the decision of this court in Bavasons Constructions (P) Ltd. (cited supra). Fresh assessment in this regard shall be completed as early as possible, with due notice to all the parties concerned, and after affording them proper opportunity to produce documents in support of their claim for separate assessment of individual apartments. The fresh assessment shall be completed at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment.
6. Needless to say that amount if any already remitted by the petitioner shall be appropriated in accordance with the outcome of fresh assessment.
C.K.ABDUL REHIM, JUDGE.
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