IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 3416 of 2011(Y) ------------------------- PETITIONER(S): --------------- P.T.ROY,AGED 43 YEARS,S/O.THEYOCHAN, R/AT PALACKAL HOUSE,SREE VIEW WARD,ALAPPUZHA, REP.BY HIS POWER OF ATTORNEY HOLDER, P.T.SEBASTIAN,S/O.THEYOCHAN,PALACKALL HOUSE, SEA VIEW WARD,ALAPPUZHA. BY ADV. SRI.E.D.GEORGE RESPONDENT(S): --------------- 1. TAHSILDAR,AMBALAPUZHA,ALAPPUZHA 688 561. 2. VILLAGE OFFICER,ARYAD SOUTH, ALAPPUZHA 688 001. 3. STATE OF KERALA,REP.BY ITS SECRETARY TO REVENUE DEPARTMENT,THIRUVANANTHAPURAM - 695 001. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.3416 of 2011-B ---------------------------------------- Dated this the 17th day of March, 2011. J U D G M E N T The residential building constructed by the petitioner was assessed under the provisions of the Kerala Building Tax Act 1975, by virtue of Ext.P2 order, reckoning the total plinth area as 239.06 Sq.M by imposing the tax liability to the tune of Rs.5,400/-. Ext.P3 is the demand notice issued along with Ext.P2. Eventhough the category of the building is mentioned in Ext.P2 as 'other buildings', it is conceded that the rate of tax was computed only at the rate applicable to 'residential buildings'. The petitioner had remitted the amount as evidenced from Ext.P4. 2. Grievance of the petitioner is that he was subsequently issued with a notice as contemplated under Section 9(2) of the Act and a further assessment was completed under Ext.P6 order, followed by Ext.P7 demand notice. It is evident from Ext.P6 that categorising the building as 'other building' and reckoning the plinth area as W.P(C) No.3416 of 2011-B 2 312.16 Sq.M, a total amount of Rs.28,800/- was assessed. After giving credit to the amount of Rs.5,400/- paid by the petitioner a demand was raised for payment of the balance amount of Rs.23,400/-. The subsequent assessments evidenced from Exts.P6 and P7 are challenged in this writ petition, is unsustainable under law. 3. In a statement filed on behalf of the 1st respondent, it is mentioned that after ten months of completion of the first assessment, the 1st respondent had received a report from the Village Officer concerned to the effect that, the petitioner had extended, modified and converted the said building into a resort, under the name and style 'Palm Beach Home Stay, Alappuzha'. It is stated that since the building in question was extended for other purposes, its plinth area has increased and it attracts assessment of the entire building categorising the same as 'other buildings'. The plinth area of the building including the extension is reckoned in Ext.P6 and credit has been given for payments already effected, is the contention. W.P(C) No.3416 of 2011-B 3 4. Learned counsel for the petitioner disputes the averments contending that, eventhough some additional constructions were made, the building as such is used only for residential purposes and is only for accommodating tourists providing home stay. Therefore, the categorisation of the building as non-residential is illegal and unsustainable. He further contends that the assessment is made without jurisdiction and in non-compliance of the procedure contemplated. The impugned order of assessment is also challenged as one issued without application of mind in a printed form from which no details are discernible. 5. Considering merits of the rival contentions, I take note of the fact that the area which was initially assessed is also seen included in Ext.P6, and the total area is considered as one falling in the category of 'other buildings'. Question arises as to whether the assessing authority is entitled to have a re-assessment of any building, construction of which was completed as a residential W.P(C) No.3416 of 2011-B 4 building and assessment was completed as such, even if there is any change in the use of the building. Further question arises as to whether usage for the purpose of 'home stay' will change the category for the purpose of assessment under the Building Tax Act, as non-residential. Further question also arises as to whether the additional construction will fall within the purview of Section 5(5) and as to whether an assessment under the provisions of Section 5(4) is sustainable. 6. Going by the impugned order of assessment, it is evident that the same is issued in a printed form and it is not discernible as to whether the assessing authority had taken note of the above aspects, while finalising the assessment. Further it is not evident that the petitioner had raised any objections regarding finalisation of assessment under Ext.P6. 7. Under the above circumstances, I am of the view that the matter need reconsideration at the hands of the 1st respondent. Interest of justice will be served if a fresh W.P(C) No.3416 of 2011-B 5 assessment is finalised, after affording a reasonable opportunity to the petitioner to raise all objections on all the grounds available. 8. In the result, the writ petition is allowed and Exts.P6 and P7 are hereby quashed. The matter is remitted back to the 1st respondent for finalising fresh assessment, after affording an opportunity to the petitioner to file objections and also an opportunity of personal hearing. Fresh orders of assessment in this regard shall be issued as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 9. Needless to say that the amount already remitted shall be appropriated in accordance with outcome of the fresh assessment to be finalised. C.K.ABDUL REHIM JUDGE ab