IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 8704 of 2009(G) ------------------------- PETITIONER: --------------- ST.FRANCIES ASSISSI CHURCH, POONTHOPPU, ALLEPPEY, REP. BY ITS NADATHU KAIKKARAN P.CHACKO, S/O.K.P.PAILY, KATTIPPARAMPIL, ASRAMAM WARD, ALLEPPEY. BY ADV. MR. JOMY GEORGE MR. LITHIN THOMAS RESPONDENTS: --------------- 1. TAHSILDAR, AMBALAPUZHA. 2. VILLAGE OFFICER, ARYARD SOUTH VILLAGE, ALAPPUZHA DISTRICT. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. P.K. BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No.8704 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 7th day of July, 2009 JUDGMENT The case of the petitioner is that, the concerned building bearing No. AMC 3/1180 of the Alapuzha Muncipality was constructed in the year 1968 and is being used for running 'Assissi Special School for Mentally Challenged Children'. The case of the petitioner is that, without any regard to the date of construction of the building and also in total contravention of the relevant provisions of the law, under which the particular building is entitled to get exemption under Section 3 (1) (b) of the Kerala Building Tax Act, the first respondent has fixed the tax liability upon the petitioner as per Ext.P4, followed by Ext.P5 demand notice. The learned counsel for the petitioner submits that, the actual facts and figures have been brought to the notice of the first respondent as per Ext.P6 statement of objections filed in response to Exts. P5 and P6. 2. The learned Government Pleader, with reference to the statement already filed, submits that, the dispute, as now projected in the present Writ Petition and as contained in Ext.P6 statement of objections, was never raised before the assessing authority/first respondent at any point of time earlier. Reference is also made to WP (C) No. 8704 of 2009 : 2 : Ext.R1(a) notice, stated as issued by the first respondent prior to the assessment. The learned counsel for the petitioner submits that, the petitioner was never served with Ext.R1(a) notice at any point of time and obviously, the respondents do not have a case that it was sent by registered post. Ext.R1(a) itself shows that, the said notice was served by 'affixure'. The circumstance under which it happened to be served on the petitioner by 'affixure' is not discernible either from the said notice or from the statement filed on behalf of the first respondent. The specific case projected by the petitioner is that, the building having been constructed in the year 1968 i.e. much prior to the appointed date, no assessment is possible under the Kerala Building Tax Act, 1975 and further that the building being used for 'educational purpose', it is also liable to be exempted as provided under Section 3 (1) (b) of the Act. The learned counsel for the petitioner further submits that, if at all any doubt was there in the mind of the first respondent, the proper course was only to have it referred to the Government for clarification under Section 3 (2) of the Act. 3. Considering the facts and circumstances, the impugned order as well as Ext.P5 demand notice are set aside. The first respondent is directed to refer the matter for deciding the question of exemption stated as available to the petitioner under Section 3 (1) (b) of the Act, within one month from the date of receipt of a copy of this judgment. On WP (C) No. 8704 of 2009 : 3 : receipt of the reference, it shall be answered 3rd respondent, after giving an opportunity of hearing to the petitioner and the outcome shall be conveyed to him within a further period of two months thereafter. This will be without prejudice to the right of the petitioner to challenge the matter further, if so necessitated, also with reference to the pleading that the building was constructed before the appointed date. The Writ Petition is allowed to the extent as above. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd