IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 25300 of 2010(J) --------------------------------------- PETITIONER(S): ---------------------- VINOD JOHN, S/O. M.O. JOHN, MANJILAS, NELLIKUNNU, THRISSUR-5. BY ADV. SRI.DINESH R.SHENOY, SRI.MAHESH MENON. RESPONDENT(S): -------------------------- THE TAHASILDAR, TALUK OFFICE, PALAKKAD TALUK, PALAKKAD. BY GOVT. PLEADER MR.MATHEW GEORGE VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 25300 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 12th day of October, 2010 JUDGMENT Issue involved in this writ petition relates to refund of excess amount of Building Tax remitted under the provisions of the Kerala Building Tax Act, 1975. 2. Assessment of the Building Tax was finalized against the petitioner, with respect to a residential building constructed by him, as per Ext.P1 order of assessment and Ext.P2 demand notice. A total amount of Rs.1,94,400/- was assessed and a demand to the extent of Rs.1,63,134/- was raised, after crediting payments already made to the tune of Rs.31,266/-. As per the demand, the balance amount of Rs.1,63,134/- was directed to be paid in four quarterly instalments of Rs.40,783/- each. The said assessment was set aside by the District Collector in a revision petition and the matter was remanded to the respondent with a direction to impose tax based on the rate prevailing on the date of the taxable event. In the meanwhile the petitioner had W.P.(C) No. 25300/2010 2 effected payment of two quarterly instalments, as evidenced from Exts.P3 and P3(a) receipts. Consequent to the remand, fresh assessment was completed as per Ext.P5, re-fixing total liability to the tune of Rs.52,450/-. By the said order it was clarified that if the petitioner had remitted any amount in excess of Rs.52,450/-, he will be entitled for refund of the same. 3. On the basis of P3 and P3(a) receipts it is evident that the petitioner had effected a total payment of Rs.1,12,834/- and that he is entitled to refund a sum of Rs.60,384/-. The petitioner approached the respondent seeking refund of the said amount. But the respondent took the stand that an amount of Rs.29,180/- alone could be refunded, as the records were not available in the office regarding the payment of Rs.31,266/-. 4. According to the petitioner, from Ext.P2 demand notice itself it is clear that he had effected payment of a sum of Rs.31,266/- and such the payment was acknowledged by the assessing authority. Under such W.P.(C) No. 25300/2010 3 circumstances, the petitioner submitted a request as per Ext.P6 for refund of the entire amount. Since there was no action from the side of the respondent, a lawyer notice was also caused in this regard, as per Ext.P7. The petitioner is seeking direction to the respondent to refund of the entire amount due. 5. In a statement filed on behalf of the respondent it is mentioned that on the basis of the request a decision was taken to effect refund of Rs.29,l18/- and a proceeding was issued by the respondent as per Annexure-R1(a) effecting the payment. On a perusal of Annexure-R1(a) it is evident that while effecting such refund the respondent made it clear that if any further amount is due for refund, the same will be effected on the petitioner producing clear proof of receipt or chalan evidencing such payment. It is stated that the petitioner had failed to produce any such evidence and therefore, the request could not be acceded to . 6. On a perusal of Ext.P5 as well as Annexure-R1(a) it is evident that before issuing Ext.P1 order of assessment W.P.(C) No. 25300/2010 4 and Ext.P2 demand, Building Tax was assessed by virtue of order No.B4-429/89 dated 10-1-1992, imposing a total tax liability of Rs.52,450/-. Appeal filed against that assessment was rejected by virtue of order of the Revenue Divisional Officer, Palakkad No.K.Dis.2692/92 dated 10-12-1993, and the respondent was directed to assess the tax on the basis of the plinth area. It is further noticed that fresh assessment order B4.429/89 dated 11-11-1994 was issued. In a revision petition filed against the said order the matter was again remanded by the District Collector directing respondent to take a fresh decision. Ext.P1 order of assessment and Ext.P2 demand was issued in compliance with such direction, on 22-7-2002. As stated above, it is evident from Ext.P2 that an amount of Rs.31,266/- paid by the petitioner before finalization of such assessment and it was given credit. It is evident that as per Ext.P5 the total liability has now been re-fixed at Rs.52,450/-. Therefore, the petitioner is entitled for refund of payment made in excess of the said amount. While calculating the amount remitted before W.P.(C) No. 25300/2010 5 finalization of Exts.P1 and P2 and further remittances made as evidenced from Exts.P3 and P3(a), it is clear that the claim raised by the petitioner is true and correct. Merely because the petitioner failed to produce receipts evidencing of payment, the claim could not be rejected, alleging non availability of proper records at the office of the respondents. 7. Under such circumstances, I am of the view that the petitioner is entitled to get refund of the amount in excess of Rs.52,450/-, reckoning payment acknowledged under Exts.P2, P3 and P3(a). A fresh decision in this regard shall be taken by the respondent and refund of the balance amount, less the amount already refunded, is to be made. The needful in this regard shall be done at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C. K. ABDUL REHIM, JUDGE. mn.