IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 OP.No. 16287 OF 2000(L) ----------------------- PETITIONER: THE COCHIN MALABAR ESTATES AND INDUSTRIES LIMITED, BRISTOW ROAD, WILLINGDON ISLAND, KOCHI 682 003, REPRESENTED BY ITS COMPANY SECRETARY, MR. P.V. VARGHESE. BY ADV. SRI.ANIL D. NAIR RESPONDENTS: 1. REVENUE DIVISIONAL OFFICER, KOZHIKODE. 2. VILLAGE OFFICER, KOYILANDY. 3. DEPUTY TAHSILDAR (R.R.), VADAKARA. 4. TAHSILDAR, TALUK OFFICE, KOYILANDY. GOVERNMENT PLEADER SRI. K.P. PRADEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 16287/2000 ORDER ON CMP NO.26687/2000 IN O.P. 16287/2000 // DISMISSED // 11.7.2008. SD/-, P.R. RAMAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER FOR 1987-88 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 27.4.1994. EXT.P2 TRUE COPY OF THE ASSESSMENT ORDER FOR 1988-89 ONWARDS ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 27.4.1994. EXT.P3 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DATED 21.10.1999. EXT.P4 TRUE COPY OF THE LETTER TO THE 4TH RESPONDENT BY THE PETITIONER DATED 22.11.1999. EXT.P5 TRUE COPY OF THE LETTER ADDRESSED TO THE 1ST RESPONDENT DATED 19.11.1999. EXT.P6 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 2.6.2000. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN, J. = = = = = = = = = = O.P. NO. 16287 OF 2000 = = = = = = = = = = = = = = = DATED THIS, THE 11TH DAY OF JULY, 2008. J U D G M E N T Petitioner is an assessee under the Kerala Plantation Tax Act. For the year 1987-88 assessments were completed as is evidenced by Ext.P1 copy of the assessment order. Likewise, assessment for the year 1988-89 was also completed as evident from Ext.P2. But for the succeeding year 1989-90 assessments were not completed. It is contended that for the purpose of determination of the plantation tax, the formula adopted is the total number of yielding trees 400. For the year 1989-90, according to the petitioner, there was variation in the tax paid due to the fact that trees slaughtered and removed were also taken into consideration. Ext.P3 is a notice issued by the 4th respondent demanding an amount of Rs. 4,87,937/-. Petitioner replied to the said letter by Ext.P4 dated 22.11.1999 stating that if the assessment orders were passed as per the returns filed for the year 1988-89 there would not have any balance tax payable by the petitioner. Since the assessments were pending, request is stated to have been made to O.P. 16287/2000 :2: the RDO to pass final assessment orders and requested the Tahsildar to defer from enforcing the demand till they get an order from the RDO. Ext.P5 is a letter sent by the petitioner on 19.11.1999 to the Revenue Divisional Officer requesting him to pass assessment orders at the earliest. Reference is also made to the fact that the Tahsildar is proceeding to recover the amount towards plantation tax based on the order of assessment for the year 1988-89. Subsequently, revenue recovery proceedings were initiated for recovery of the amount as demanded. Ext.P6 is the demand so served on the petitioner under the Revenue Recovery Act. Challenging Ext.P6 revenue recovery notice, this writ petition is filed. 2. The main ground urged in the writ petition is that Ext.P6 revenue recovery notice is illegal since it is not based on the return filed by the petitioner for the year 1989-90 onwards. In spite of returns filed, assessments were not completed for the year 1989-90 and plantation tax payable by the petitioner varied from year to year due to slaughtering of trees for re-plantation in between two assessment years and therefore, it is contended that the plantation every year will not be uniform since the yield will be different depending upon the number of yielding trees available. 3. The respondent has filed a counter affidavit. It is contended that O.P. 16287/2000 :3: petitioner has not filed any return for the year 1989-90 and therefore, his contention that no assessment orders were passed on the return filed by him is untrue. It is further averred that plantation tax assessment for the properties possessed by the petitioner was finalised for the year 1988-89 onwards as per order dated 27.4.1994 produced as Ext.P2 along with the original petition. Demand has been issued in respect of the plantation held by the petitioner in three taluks, namely, Kozhikode, Koyilandi and Mukundapuram for different amounts. The amount now sought to be recovered is due from the petitioner for the plantation held by him in Koyilandi taluk. They have also given an account of the various amounts outstanding due from the petitioner for 1987-88 to 1993-94. According to them, the assessment was revised from 1989-90 to 1993-94 and the assessment order was issued in 1994. They denied the contention contra. The assessments were revised adopting the principles contained in the Plantation Tax Act, 1960 and the subsequent amendments and also taking into account the total number of yielding plants. If there is any doubt regarding the yielding trees petitioner would have taken the matter before the assessing officer in time. 4. Heard both sides. Even though the petitioner would contend that O.P. 16287/2000 :4: he has filed a return for the assessment year 1989-90 the copy of the return so filed has not been produced in this case. The contention that a return has been filed is specifically denied in the counter affidavit. No proof of having filed the return has been produced even subsequently. So much so, the petitioner was not able to substantiate his contention that the return for the year 1989-90 was filed and pending consideration. Ext.P2 is the order of assessment for the year 1988-89 onwards. From Ext.P2 itself, it can be seen that it is a composite order passed for 1988-89 onwards. In respect of the plantation in Mukundapuram - Varandarappally, the amount due by way of plantation tax for the year 1988-89 is for 2626.03 hectares. Likewise, regarding the plantations in Kozhikode and Koyilandi also there is no difference in the extent. In Ext.P1 the total number of bearing trees, yielding plants etc. is left blank. The amount of plantation tax for the year 1987-88 is assessed as Rs. 1,77,640/-. In Ext.P2, for the same area of 1370.4625 hectares, assessment made is for a total amount of Rs. 4,78,962/-. Considering the total amount assessed, which relates to the period 1989-90 to 1993/94, it cannot be said to be on a higher side unless it is shown that the number of trees yielded during the subsequent year considerably got reduced because of the slaughtering of the trees in the O.P. 16287/2000 :5: meanwhile which is a fact to be pleaded and proved by the petitioner which has not been done. Therefore, if the petitioner has got any objection to Ext.P3 necessarily petitioner ought to have raised these objection in further appeal or revision before the authorities concerned. In the factual situation, if the petitioner has proved that returns were filed for the subsequent years, necessarily relief could have been moulded based on that. However, that could also not be done since the copies of the report, if at all filed, are not produced and the contention that returns have been filed s denied by the respondents in their counter affidavit. 5. In the above circumstances, since the assessment order Ext.P2 passed is a composite order for the year 1989-90 to 1994-95, the justifiability of such a demand has to be considered in the light of the provisions contained in the Plantation Tax Act. 6. As per Section 4 of the Act, every person who holds an extent of five acres or more of plantation, is liable to file a return in the prescribed form. Thereafter, the assessing officer has to determine the extent of the plantation held by the assessee and make an assessment under Section 5 after affording an opportunity to the assessee incase the return is not accepted by him and in case no such return is filed, Section 5(4) enables the O.P. 16287/2000 :6: authority to determine the extent of plantation to the best of his judgment and assess the plantation tax payable by the assessee on that basis. In this case, it is not shown by the assessee that he filed any return for the year 1989-90 and for the subsequent years. Hence the authorities are entitled to make a best judgment assessment. The best judgment assessment so made, as evidenced by Ext.P2, when compared to the assessment made to the previous year cannot be said to be arbitrary or capricious. In such circumstances, there is no merit in this writ petition. Accordingly, the same is dismissed. P.R. RAMAN, (JUDGE) knc/- O.P. 16287/2000 :7: P.R. RAMAN, J. = = = = = = = = = O.P. NO. 16287/2000 J U D G M E N T DATED: 11.7.2008