IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 23118 of 2011(L) --------------------------------- PETITIONER(S): ------------------- 1. ABRAHAM THOMAS, S/O.N.J.THOMAS, ETTUPARAYIL HOUSE, 121/12,KAVUMPADY, MUVATTUPUZHA. 2. KUNCHERIA THOMAS, S/O.N.J.THOMAS, ETTUPARAYIL HOUSE,VENNALA P.O.,ERNAKULAM. 3. GEORGE THOMAS, 33/226B, VAYANASALA ROAD, VYTILA P.O., ERNAKULAM. 4. TOM THOMAS, S/O.N.J.THOMAS, 36/896, M.G.ROAD,ERNAKULAM. 5. RANI ABRAHAM, ETTUPARAYIL HOUSE,121/12, KAVUMPADY,MUVATTUPUZHA. 6. REENA KUNCHERIA, ETTUPARAYIL HOUSE, VENNALA P.O., ERNAKULAM 7. TESSY GEORGE, W/O.GEORGE THOMAS, 33/266 B, VAYANASALA RAOD,VYTTILA, ERNAKULAM. 8. ZEENIA THOMAS, W/O.TOM THOMAS, 36/896, M.G.ROAD,ERNAKULAM. BY ADVS. SRI.SHAJI P.CHALY SRI.S.GOPAKUMAR SRI.R.SANJITH svs .........2/-.... ...2.... WPC. NO.23118/2011 RESPONDENT(S): --------------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY REVENUE DEPARTMENT, SECRETRIAT,THIRUVANANTHAPURAM-1. 2. TAHSILDAR, ASSESSING AUTHORITY (BUILDING TAX), KANAYANNUR TALUK, ERNAKULAM-682 011. 3. VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE, ERNAKULAM-682 024. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 23118/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DOCUMENT BEARING NO.3253/01. P1(a):COPY OF THE LATEST TAX PAID RECEIPT DATED 16/09/2010. P2: COPY OF THE DOCUMENT BEARING NO.3343/01. P2(a):COPY OF THE LATEST TAX PAID RECEIPT DATED 16/09/2010. P3: COPY OF THE SAID PARTITION CUM CONSTRUCTION AGREEMENT DATED 13/09/2002. P4: COPY OF THE APPROVED BUILDING PLAN. P5: COPY OF THE BUILDING PERMIT BEARING NO.EYP1 - 58/04 DATED 25/02/2004. P6: COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY KOCHI CORPORATION DATED 29/06/2005. P7: COPY OF THE BUILDING TAX RECEIPT DATED 20/09/2010 CONCERNING 1ST PETITIONER'S SHARE. P8: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011. P9: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 3RD PETITIONER'S SHARE. P10: COPY OF THE BUILDING TAX RECEIPT DATED 26/02/2011 CONCERNING 4TH PETITIONER'S SHARE. P11: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 5TH PETITIONER'S SHARE. P12: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 6TH PETITIONER'S SHARE. P13: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 7TH PETITIONER'S SHARE. P14: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 8TH PETITIONER'S SHARE. svs ........2/-.... ...2... WPC. NO.23118/2011 P15: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 1ST PETITIONER DATED 26/07/2005. P16: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 2ND PETITIONER DATED 26/07/2005. P17: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 3RD PETITIONER DATED 26/07/2005. P18: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 4TH PETITIONER DATED 26/07/2005. P19: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 5TH PETITIONER DATED 26/07/2005. P20: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 6TH PETITIONER DATED 26/07/2005. P21: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 7TH PETITIONER DATED 26/07/2005. P22: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 8TH PETITIONER DATED 26/07/2005. P23: COPY OF THE RETURN SUBMITTED BY THE 1ST PETITIONER REGARDING COMPLETION OF BUILDING. P24: COPY OF THE RETURN SUBMITTED BY THE 2ND PETITIONER REGARDING COMPLETION OF BUILDING. P25: COPY OF THE RETURN SUBMITTED BY THE 3RD PETITIONER REGARDING COMPLETION OF BUILDING. P26: COPY OF THE RETURN SUBMITTED BY THE 4TH PETITIONER REGARDING COMPLETION OF BUILDING. P27: COPY OF THE RETURN SUBMITTED BY THE 5TH PETITIONER REGARDING COMPLETION OF BUILDING. P28: COPY OF THE RETURN SUBMITTED BY THE 6TH PETITIONER REGARDING COMPLETION OF BUILDING. P29: COPY OF THE RETURN SUBMITTED BY THE 7TH PETITIONER REGARDING COMPLETION OF BUILDING. P30: COPY OF THE RETURN SUBMITTED BY THE 8TH PETITIONER REGARDING COMPLETION OF BUILDING. svs .......3/-... ...3... WPC. NO.23118/2011 P31: COPY OF THE AFFIDAVIT SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P32: COPY OF THE AFFIDAVIT SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P33: COPY OF THE AFFIDAVIT SUBMITTED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P34: COPY OF THE AFFIDAVIT SUBMITTED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P35: COPY OF THE AFFIDAVIT SUBMITTED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P36: COPY OF THE AFFIDAVIT SUBMITTED BY THE 6TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P37: COPY OF THE AFFIDAVIT SUBMITTED BY THE 7TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P38: COPY OF THE AFFIDAVIT SUBMITTED BY THE 8TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011. P39: COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT DATED 14/01/2011 P40: COPY OF THE DAY BOOK AND LEDGER ACCOUNTS MAINTAINED BY THE PETITIONERS WITH REGARD TO CONSTRUCTION. P41: COPY OF THE ORDER OF ASSESSMENT PASSED BY THE 2ND RESPONDENT DATED 11/07/2011. P42: COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED 11/07/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.23118 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2011 J U D G M E N T The petitioners are owners of separate portions of an apartment complex. According to them, they are joint owners of the property on which the apartment complex has been constructed and as per an agreement among them, they have decided to contribute their shares for construction of separate portions of the apartment complex. Therefore, according to them, the separate portions owned by each of them is liable to be assessed for building tax under the Kerala Building Tax Act, separately. But instead, by Ext.P41 order, the entire apartment complex has been assessed as one building and Ext.P42 demand notice has also been issued. The petitioners contend that the assessment order does not contain any reference to their contentions. They have also produced documents to prove their contentions that the separate portions of the apartment complex owned by each of them were W.P.(C)No.23118 of 2011 -2- constructed as per an agreement pursuant to which each of them contributed their shares for construction of the portions owned by them separately. According to the petitioners, none of these documents or the contentions of the petitioners have been considered by the assessing authority in Ext.P41 assessment order. They point out that except the names of the petitioners, the area and the amount of tax, the assessment order does not contain any reason whatsoever or the method of assessment even. The petitioners rely on the following decisions of this Court, wherein, this Court has specifically stated that the assessment orders should contain specific reasons especially when objections are filed: Tharu v. Tahsildar [2003 (1) KLT 219], Bavasons Constructions (P) Ltd v. State of Kerala [2007 (3) KLT 101], District Collector v. Sreekumari Kunjamma [2011 (1) KLT 248 (F.B.)] 2. I have heard the learned Government Pleader who would contend that Ext.P41 assessment order has been W.P.(C)No.23118 of 2011 -3- passed after considering all the contentions of the parties. 3. I have considered the rival contentions in detail. 4. As rightly pointed out by the counsel for the petitioners, Ext.P41 assessment order contains only some printed sentences wherein the names of the petitioners, the area and the amount of the tax only have been filled up. There is absolutely no reason stated therein. It also does not disclose the method of assessment. I am also of opinion that, passing of assessment orders under the Kerala Building Tax Act cannot be a mechanical process. The assessing authority should apply his mind to the contentions of the parties and the assessing order on the face of the same should disclose such application of mind giving reasons for the same. In Ext.P41 printed form of order the assessing authority has not even scored off the portions which are not applicable to the petitioners, which itself shows total non-application of mind. I have in one decision held that while passing assessment orders under the Kerala Building Tax Act, the assessing authority should not W.P.(C)No.23118 of 2011 -4- mechanically follow the form of assessment order prescribed in the rules. If there is no space provided for giving reasons in the printed form, the reasons should be appended to the assessment order in a separate sheet. In view of the fact that Ext.P41 assessment order does not contain any reasons whatsoever, I am of opinion that, it amounts to violation of principles of natural justice. Accordingly, Ext.P41 assessment order and Ext.P42 demand notice pursuant to the same are quashed. The assessing authority, namely the 2nd respondent herein, is directed to pass fresh assessment orders in accordance with the observations contained herein as well as the principles in the decisions of this Court referred to above, expeditiously, after considering the documents produced by the petitioners and their contentions with an opportunity of being heard to them. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/