IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 WP(C).No. 5742 of 2011(P) ------------------------- PETITIONER: ------------------- MUMTHAZ K.H., W/O. LATE SIDDIQUE ALI, VALIYAVEETTIL, S.R.M.ROAD, ERNAKULAM DISTRICT. BY ADVS. SRI.SHAHUL HAMEED MOOPPAN SRI.T.A.NIYAS RESPONDENTS: ---------------------- 1. TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, PIN-683511. 2. DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM. BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J. ----------------------------------------- W.P.(C). NO. 5742 OF 2011 ---------------------------------------- Dated this the 4th day of March, 2011. JUDGMENT Challenge in this writ petition is against Ext.P2 order of assessment finalized under the provisions of the Kerala Building Tax Act, 1975 and the consequent demand raised. According to the petitioner, he had constructed a two storied building, the ground floor of which is commercial in nature and the first floor is constructed for residential purpose. The building permit was obtained by the petitioner for three floors specifically mentioning that the ground floor is intended for commercial purposes whereas the two other floors are intended to be constructed as residential buildings. It is further contended that on completion of the two floors the local authority had assessed property tax at different rates reckoning usage as residential and commercial with respect to the distinct areas. 2. Contention of the petitioner is that before finalising the assessment the petitioner was not issued any notice, nor she was afforded with any opportunity for production of documents or for personal hearing. Specific case of the petitioner is that, her name W.P.(C). NO. 5742 OF 2011 2 is Smt. Mumthaz K.H and her address as shown in the writ petition. But it is evident that the assessment was finalised in the name as 'Kunjumol', D/o.Hamsa Kunju. Under such circumstances, it is contended that there is no proper assessment made against the petitioner and that the tax imposed reckoning the entire building under the category of “other buildings” is totally unsustainable. 3. Government Pleader appearing on behalf of respondents, on the basis instructions, submitted that, a notice was issued before finalising the assessment in the name of the petitioner as 'Kunjumol', D/o. Hamsa Kunju, was accepted by the father of the petitioner, but nobody had turned up for personal hearing conducted. 4. On a perusal of Ext.P2 order of assessment as well as the demand notice, it is evident that the same were issued in printed forms, without disclosing the exact situation. It is not desirable from those documents as to whether any notice was issued to the petitioner before finalising the assessment or as to whether the petitioner had submitted objections. It is settled law by this time that if a building contains distinct portions which were constructed separately for residential purposes and commercial W.P.(C). NO. 5742 OF 2011 3 purposes, each such portion has to be assessed under the respective tariffs applicable. Petitioner relies on a decision of this Court in Sukumaran Vs.Thahasildar, (1999 (2) KLT 373), in order to canvass the above position. Considering the contentions raised, I am of the view that even assuming that any notice was served on the father of the petitioner, the assessment was not completed in a proper manner, after affording due opportunity to the petitioner. It is also noticed that the contention regarding the rate of tax applicable to the distinct portions was not considered by the assessment authority. Therefore, I am of the view that the matter requires re-consideration at the hands of the assessing authority. 5. However, it is noticed that even assuming that the contention of the petitioner regarding separate tariff is accepted, the petitioner will be at liability to pay certain amounts of tax. Therefore, I am of the view that interest of justice will be served if the first respondent is directed to complete the assessment afresh, on the petitioner remitting a sum of Rs.20,000/- towards the liability of the tax due, within a period of one month from today. 6. Accordingly, the writ petition is allowed and Ext.P2 order W.P.(C). NO. 5742 OF 2011 4 of assessment is hereby quashed. The first respondent is directed to consider the matter afresh, after affording reasonable opportunity to the petitioner to produce documents in support of her contentions and an opportunity of personal hearing. The assessment in this regard shall be finalised at the earliest possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Till such time, realisation of any amount of tax shall be kept in abeyance if the petitioner remits an amount of Rs.20,000/-, within a period of one month from today, which will be appropriate against tax amount if any due on finalizing the fresh assessment. C.K.ABDUL REHIM, JUDGE mns