Kerala High Court
E.P.K.Balakrishnan vs The District Collector
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933
WP(C).No. 5351 of 2007 (K)
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PETITIONER(S):
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1. E.P.K.BALAKRISHNAN,
S/O.KUNHIKUTTAN, KRISHNA BHAVAN, CHEMBUKKAVU DESOM
THRISSUR VILLAGE, THRISSUR DISTRICT.
2. THANKAM BALAKRISHNAN,
W/O.E.P.K.BALAKRISHNAN, KRISHNA BHAVAN, CHEMBUKKAVU
THRISSUR DISTRICT.
BY ADV. SRI.N.P.SAMUEL
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR,
THRISSUR, (REVISIONAL AUTHORITY UNDER THE
KERALA BUILDINGS TAX ACT).
2. THE REVENUE DIVISIONAL OFFICER,
THRISSUR. (APPELLATE AUTHORITY UNDER THE
KERALA BUILDING TAX ACT).
3. THE TAHSILDAR, THRISSUR,
(THE ASSESSING AUTHORITY UNDER THE KERALA
BUILDING TAX ACT).
R1 TO R3 BY GOVERNMENT PLEADER SRI. SHAIJ RAJ T.K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DCS
WP(C).No. 5351 of 2007 (K)
APPENDIX
PETITIONER(S) EXHIBITS :-
EXHIBIT P1- PHOTOCOPY OF ORDER NO. C5-BT-18985 DTD. 12.1.96 ISSUED BY R3
EXHIBIT P2- PHOTOCOPY OF ORDER NO. K. DIS 4982/96/C1 DTD. 13.11.97 ISSUED BY
R2
EXHIBIT P3- PHOTOCOPY OF ORDER NO. H5.189/85 DTD. 19.12.97 ISSUED BY R3
EXHIBIT P4- COPY OF OBJECTION FILED BY PETITIONERS BEFORE R3 ON 19.1.98
EXHIBIT P5- COPY OF ORDER NO.B4-71466/97 DT. 15.9.98 ISSUED BY R1
EXHIBIT P6- COPY OF JUDGMENT IN O.P. NO. 20620/1998-D DTD.9.11.2005 OF THIS
HON'BLE COURT
EXHIBIT P7- PHOTOCOPY OF ORDER NO. G1-45293/06 DTD. 18.1.2007 ISSUED BY R1
EXHIBIT P8- PHOTOCOPY OF NOTICE OF PROPERTY TAX ISSUED BY THRISSUR
MUNICIPALITY ON 24.02.81
EXHIBIT P8(a) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(b) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(c) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(d) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(e) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(f) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(g) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(h) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(i) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(j) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(k) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
DCS
WP(C).No. 5351 of 2007 (K)
EXHIBIT P8(l) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(m) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(n) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(o) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(p) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(q) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(r) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P8(s) - PHOTOCOPY OF NOTICE OF PROPERTY TAX DATED 24.02.81
EXHIBIT P9 - PHOTOCOPY OF LICENCE ISSUED BY THE THRISSUR
MUNICIPALITY DT. 12.04.84
EXHIBIT P10- PHOTOCOPY OF PROFESSIONAL TAX ISSUED BY THRISSUR
MUNICIPALITY DTD 18.08.81
EXHIBIT P11 - PHOTOCOPY OF PROFESSION TAX DTD. 18.08.81 ISSUED BY
THRISSUR MUNICIPALITY
EXHIBIT P12 - PHOTOCOPY OF PROPERTY TAX PAID BY IST PETITIONER TO THE
THRISSUR MUNICIPALITY ON 26.03.1983
EXHIBIT P13 - PHOTOCOPY OF MEMO ISSUED BY THRISSUR MUNICIPALITY FOR
REVISING THE PROPERTY TAX DTD. 19.03.1983
RESPONDENTS' EXHIBITS :- NIL
/TRUE COPY/
P.A. TO JUDGE
DCS
P.R. RAMACHANDRA MENON J.
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W.P(C) No. 5351 of 2007
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Dated, this the 5th day of March, 2012
JUDGMENT
The issue involved in this writ petition is with regard to the finalization of assessment of building tax under Section 5 of the Kerala Building Tax Act.
2. The case of the petitioners is that, they constructed a building complex as early as in the year 1981 and started to occupy the same then and there onwards. Though the third respondent initiated steps to assess the building in the year 1985, no further steps were pursued taking the proceedings to a logical conclusion within a reasonable time and the assessment order was passed years later, only on 12.01.1996. The tax liability of Rs.2,22,000/- was fixed, based on the 'plinth area', in view of the amendment brought about to the Statute as per the Act 3 of 1992. It is stated that the statutory remedy available to the petitioner, though, was pursued, did not turn to be fruitful and hence the petitioners are constrained to approach this Court by filing the above writ W.P.(C) No. 5351 of 2007 : 2 : petition.
3. The learned counsel for the petitioners submits that, since the building was constructed much earlier to the amendment brought about, it was liable to be assessed only with reference to the 'capital value' as per the then existing statute and not with reference to 'plinth area' which turned to be the basis only by virtue of Act 3 of 1992. There is also a case for the petitioners that the assessing authority was simply protracting the matter to be taken to a date after commencement of the new Act, in view of the proposed steps for amendment, so that revenue would be benefited, once the assessment was made with reference to 'plinth area'. Reliance is also sought to be placed on the report, after inspecting the building, wherein recommendation was given to have the building assessed with reference to the 'capital value'.
4. The third respondent has filed a counter affidavit pointing out the actual facts and figures, asserting that the contentions raised by the petitioners do not have any merit or W.P.(C) No. 5351 of 2007 : 3 : bona fides. It is specifically pointed out in paragraph 2 and 7 of the said counter affidavit that the new Act providing for assessment of the tax based on 'plinth area' was brought into force w.e.f 10.02.1992; that the petitioners were given notice as to further steps for assessment, that a hearing was already fixed on 18.10.1993 and the party, though present, did not file any objection, nor did he produce the approved plan and completion certificate. It is also asserted from the part of the 3rd respondent that an application was preferred by the petitioners on 22.11.1995, seeking to postpone the assessment due to incompletion of the basement and second floor. A site inspection was also conducted from the taluk office and reported that the 2nd floor and basement floor were not completed. It was accordingly that the assessment was finalized on 12.01.1996, based on the 'plinth area' as provided under the Statute and this being the position, there is no pith or substance in the contentions taken by the petitioners.
5. After hearing the learned counsel for the petitioners and also the learned Government Pleader appearing on behalf W.P.(C) No. 5351 of 2007 : 4 : of the respondents, this Court finds that, there is no denial of the specific averments raised by the respondents in the counter affidavit, particularly in paragraphs 2 and 4. The factum of filing of application dated 22.11.1995 seeking to postpone the assessment due to incompletion of basement and 2nd floor is not rebutted in the reply affidavit. The learned Government Pleader produced the relevant file before this Court which contains the letter written by the petitioner as aforesaid.
6. The learned counsel for the petitioners submits that, after passing Ext. P1 order of assessment, yet another order was passed by the assessing authority as borne by Ext. P3 dated 19.12.1997 simply fixing a higher liability than the liability fixed as per Ext. P1 dated 12.01.1996 , where the liability was only Rs. 2,22,000/- The petitioners had approached this Court earlier by filing O.P. No. 20620 of 1998 challenging Ext. P3 (wherein it was produced as Ext. P5) and this Court had set aside the proceedings directing the revisional authority to consider and finalize the revision W.P.(C) No. 5351 of 2007 : 5 : petition pending before the said authority. It was accordingly that Ext. P7 order was passed by the first respondent on 18.01.2007, whereby interference has been declined observing that the request made by the revision petitioners to exempt the 'area' could not be acceded to, as the building was a commercial one.
7. However, the fact remains that the liability referred to by the first respondent in Ext. P7 is to the tune of Rs. 4,18,200/- for the plinth area of 3097 M2 i.e. the liability fixed as per Ext. P3, which stands set aside by this Court while passing Ext. P6, directing the revisional authority to consider and finalize the revision. In other words, the finding and reasoning given in Ext. P7 do not reconcile with the contents of Ext. P1 and it is more with reference to Ext. P3 proceedings (quashed by this Court in O.P. No. 20620 of 1998). As such, this Court finds that the matter requires to be reconsidered by the assessing authority, with reference to the actual facts and figures, though, the plea set forth by the petitioners, seeking to have the assessment made with reference to the capital W.P.(C) No. 5351 of 2007 : 6 : value cannot be accepted. The assessment has to be finalized only in accordance with the amended provision, with reference to the 'plinth area'.
8. In the said circumstances, both Exts. P1 and P7 are set aside and the matter is remanded to the 3rd respondent for finalization of the assessment in tune with the relevant provisions of law and also with reference to the observations made hereinbefore. The proceedings as above shall be finalized as expeditiously as possible, of course after giving an opportunity of hearing to the petitioner, at any rate within three months from the date of receipt of a copy of this judgment.
The Writ Petition is disposed of.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd