IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WA.No. 597 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.15871/2004 Dated 11/12/2009 .................... APPELLANTS/RESPONDENTS IN WPC: ---------------------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, FORTKOCHI, ERNAKULAM. 3. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. BY GOVERNMENT PLEADER, SRI. K.P. PRADEEP. RESPONDENTS/PETITIONERS IN WPC: ------------------------------------------ 1. P.S. JAYAPRAKASH PRABHU, S/O.SREENIVASA PRABHU, NOW RESIDING AT PULLEPADATH HOUSE, T.D. EASTSANNIDHIROAD, ERNAKULAM. 2. P.J. JAYAPRASAD PRABHU,S/O. JAYAPRAKASH PRABHU, NOW RESIDING AT PULLEPADATH HOUSE, T.D. EASTSANNIDHIROAD, ERNAKULAM. 3. P.J. JAYAPRASANTH PRABHU,S/O. JAYAPRAKASH PRABHU, NOW RESIDING AT PULLEPADATH HOUSE, T.D. EASTSANNIDHIROAD, ERNAKULAM. BY ADV. SRI. S. VINOD BHAT. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & K.Balakrishnan Nair, J. ------------------------------------------ W.A. No.597 of 2010 ------------------------------------------ Dated this the 31st day of March, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by the judgment dated 11th December, 2009 in W.P.(C) No.15871 of 2004, the respondents therein preferred the present writ appeal. 2. The three respondents herein/writ petitioners were assessed to tax under the Kerala Building Tax Act, 1975. Such an assessment came to be made in view of the construction made by them (the details of which may not be necessary for the purpose of the present order). Admittedly, such a construction is liable for tax under the abovementioned Act. 3. In view of the definition of the expression 'building' occurring under Section 2(e) of the said Act read with Explanation II thereunder, the tax liability varies depending upon the extent of W.A. No.594 of 2010 - 2 - the construction and the nature of ownership of the construction. 4. The respondents herein claim joint ownership over the building in question. Their shares, of course, are not equal (details of which are not necessary for the purpose of the present order). 5. The appellants herein rejected the claim of the respondents and assessed the entire building as one unit, whereby assessing the building to a higher rate of tax. Aggrieved by such assessment, the respondents herein exhausted the various statutory remedies and eventually approached this Court by filing the writ petition which is the subject matter of the instant appeal. 6. The learned Judge by the judgment under appeal set aside the assessment and remitted the matter back to the assessing authority with certain directions. The relevant portion of the judgment reads as follows: “This Court finds it fit and proper to have the matter re considered by the assessing authority, taking note of the observations made hereinbefore. Accordingly, Ext.P5, P6 and P7 are set aside and the 3rd respondent is directed to reconsider the matter with opportunity to the petitioners to substantiate their case by producing all the necessary W.A. No.594 of 2010 - 3 - documents including Ext.P1 to P4 produced before this Court. The matter shall be finalized as above, after hearing the petitioners, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.” 7. The learned Government Pleader argued that Ext.P4 document ought not to have been taken into consideration by the learned Judge, nor could it be taken into consideration even on a remand to the assessing authority. Ext.P4 is the office copy of the document purporting to be a promissory note jointly executed by the three respondents herein in favour of Global Trust Bank Limited. The said document was not produced before the assessing authority. Even otherwise, what is produced before the learned Judge is only an office copy which does not contain the signatures of all three respondents herein. 8. On the other hand, the learned counsel for the respondents herein submits that the original of the document would necessarily be in the custody of the Bank and, therefore, the same could not be produced before the assessing authority. The same could be produced only if an opportunity is given to the W.A. No.594 of 2010 - 4 - respondents to take such steps to enable them to produce the original document and, therefore, the objection that the document as produced does not contain the signatures of all the respondents is not relevant for deciding the issue. 9. In the abovementioned background of the facts, we do not see any reason to interfere with the judgment under appeal except to clarify that it is open to both the parties, the appellants and the respondents, to take such pleas as are available to them under law regarding the admissibility, proof and genuineness of Ext.P4 document as and when the matter is taken up for reconsideration by the assessing authority. With the above observation, we dispose of the writ appeal at the admission stage itself. J.Chelameswar, Chief Justice K.Balakrishnan Nair, Judge vns