IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 31380 of 2009(N) -------------------------- PETITIONER(S): --------------- ASSUMPTION HOSPITAL, KANJIRAPPUZHA P.O., PALAKKAD- REPRESENTED BY ITS ADMINISTRATOR, SR.ALBINA MSJ. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PALAKKAD. 3. TAHSILDAR, MANNARKKAD, PALAKKAD. ADV.SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 31380 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2009 J U D G M E N T 1. Petitioner is challenging Ext.P6 order of assessment issued under the provisions of the Kerala Building Tax Act, 1975. Contention is that the buildings which are assessed is a hospital and a convent, which are exclusively used for charitable purposes and is owned by a Trust which is recognized by the Income Tax Department as a charitable organization. Further contention is that the convent building consisting of a chapel and residence for accommodation of the staff and nuns working in the hospital. Therefore the petitioner claims that the building in question is liable to be exempted from payment of tax under Section 3 (1) (b) of the Kerala Building Tax Act. W.P.(C)No. 31380 of 2009 -2- 2. According to the petitioner while the 3rd respondent initiated proceedings for assessment, the petitioner submitted Ext.P4 objection claiming that the building in question is liable to be exempted. But ignoring the said objection assessment was finalised as per Ext.P6. 3. Learned Government Pleader appearing for the respondents on the basis of instructions submitted that Ext.P4 letter was received by the 3rd respondent Tahsildar, before completion of the assessment. 4. Section 3 (2) provides that if any question arise as to whether the building will fall under Sub Section (1) of Section 3 or under Section 3 A, the same shall be referred for decision of the Government and the Government being the competent authority shall take a decision thereon after hearing the parties interested. A Division Bench of this Court in Victory Paper and Boards Vs. State of Kerala (2000(1) KLJ 863) held that when a claim is made for exemption the assessing authority ought to have referred the matter to the Government as stipulated under W.P.(C)No. 31380 of 2009 -3- Section 3 (2) and if there is any failure to make such reference, the assessment order could not be sustained. 5. In this case it is evident that before completing the assessment, the petitioner had raised a claim to the effect that the building in question is liable to be exempted. It seems that the authority has not conducted any adjudication on such claim. Rather, it is to be noticed that, even the assessing authority is not entitled to adjudicate such claims, by virtue of provisions in Section 3 (2). Therefore it is clear that there is failure to refer the matter for a decision of the Government. Hence Ext.P6 assessment cannot be sustained. 6. In the result, Ext.P6 is hereby quashed. The 3rd respondent is directed to refer the matter for a decision of the Government as provided under Section 3 (2) of the Kerala Building Tax Act. The 1st respondent is directed to take a decision on such reference, after affording opportunity of hearing to the petitioner based on facts and materials to be produced before that authority, as early as W.P.(C)No. 31380 of 2009 -4- possible, at any rate within a period of two months from the date of receipt of such reference. C.K. ABDUL REHIM JUDGE shg/