IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 11423 of 2007(I) -------------------------- PETITIONER: --------------- GOVIND H.PATEL,S/O.HIRJI PATEL, AGED 38 YEARS,AMBIKA NIVAS,A.M ROAD,PERUMBAVOOR. BY ADV. MR. K.SUNILKUMAR RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR,COLLECTORATE, KAKKANAD,ERNAKULAM. 2. THE TAHSILDAR(ASSESSING AUTHORITY), TALUK OFFICE,KUNNATHUNADU,PERUMBAVOOR. 3. THE VILLAGE OFFICER,PERUMBAVOOR VILLAGE, PERUMBAVOOR. BY GOVERNMENT PLEADER MR. MATHEW GEORGE VADAKKAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON 27/05/2010 DELIVERED THE FOLLOWING: WP (C) 11423/2007 APPENDIX EXT.P1 : THE TRUE COPY OF THE LICENCE NO. 123/2006 ISSUED BY THE MUNCIPAL COUNCIL, PERUMBAVOOR DATED 21.6.2006 TO THE PETITIONER. EXT.P2 : THE TRUE COPY OF THE NOTICE DATED 13.11.2006 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P3 : THE TRUE COPY OF THE REPRESENTATION DATED 25.11.2006 SUBMITTED BY THE PETITIONER. EXT.P4 : THE TRUE COPY OF THE ORDER ASSESSMENT DATED 17.01.2007 EXT.P5 : THE TRUE COPY OF THE NOTICE OF DEMAND DATED 17.01.2007 EXT.P6 : THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 29.1.2007 EXT.P7 : THE TRUE COPY OF THE RECOVERY NOTICE DATED 15.03.2007 ISSUED BY THE SECOND REPONDENT TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 11423 of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 27th day of May, 2010 JUDGMENT Ext.P4 assessment order passed by the second respondent fixing the liability to pay the tax under the Kerala Building Tax Act is under challenge in this Writ Petition. 2. The case of the petitioner is that, the petitioner is running a saw mill industry in the building bearing XVI A of Perumbavoor municipality situated in Re Survey No. 4/73 of Perumbavoor village. Building/shed was constructed in the year 2005 for the purpose saw mill industry and the industry was being run by the petitioner on the strength of Ext.P1 licence issued by the concerned authority. 3. The learned counsel for the petitioner submits that, the second respondent issued Ext.P2 notice to the petitioner on 13.11.2006, directing the petitioner to appear for hearing on 25.11.06, whereupon, the petitioner filed Ext.P3 representation, seeking to have the matter adjourned because of some unforeseen circumstances. Case of the petitioner is that, without any regard to the requests made by the petitioner, the second respondent finalized the assessment based on Ext.P4 order, mulcting the liability upon the shoulders of the petitioner and issued Ext. P5 demand notice. The petitioner submitted a detailed statement of objections as borne by Ext. P6 stating that, the W.P. (C) No. 11423 of 2007 : 2 : petitioner's unit is an industry which is eligible for exemption from the tax liability as clearly provided under Section 3 (1) (b) of the Kerala Building Tax Act. But the respondents proceeded with further steps for realization of the amount stated as due from the petitioner, invoking the machinery under the Kerala Revenue Recovery Act, as borne by Ext.P7, which made the petitioner to approach this Court, which was admitted on 2.4.2007 also granting interim stay and it was being extended from time to time. 4. The learned Government Pleader submits, with reference to the contents of the statement filed that, there is total failure on the part of the petitioner right from the beginning, in so far as the petitioner failed to file returns, under Section 7 (1) of the Act and it was in the said circumstances that notices under Section 9 (2) and 9 (4) were issued, finally leading to Ext.P4 order. It is also pointed out that the opportunity given to the petitioner to put forth his version, was not effectively utilized, as no objection was submitted prior to passing Ext.P4, but for filing Ext.P3 representation to adjourn the case. The learned Government Pleader also submits that Ext.P6 objection was preferred by the petitioner after passing the final assessment order and as such, it is not liable to be entertained. W.P. (C) No. 11423 of 2007 : 3 : 5. After hearing both the sides, this Court finds that the factual position that the petitioner had sought for adjournment of the hearing scheduled on 25.11.2006, by filing Ext.P3 representation on receipt of Ext.P2 notice stands admitted. It is stated in the opening paragraph of the statement filed by the second respondent that, pursuant to Ext.P3 request, the second respondent adjourned the hearing to 7.12.2006; despite which petitioner/owner of the building did not file any objection and it was in the said circumstances, that Ext.P4 order was passed on 17.01.2007. But it is not discernible from the said statement as to whether the second respondent had intimated the petitioner as to the granting of the request for the adjournment and the posting scheduled on 7.12.2006. No copy of the notice or any acknowledgment card returned from made by the petitioner in this regard has been produced along with the statement. Having acted on the basis of Ext.P3, to have the case adjourned, it was for the second respondent to ensure proper service of notice as to the next hearing,before the matter was finalized as per Ext.P4. That apart, the course of events as now given in the 'statement' do not find a place in Ext,P4., which is only a printed order, rather stereo-typed, but for the figures as to the amount to be satisfied on the specified dates. W.P. (C) No. 11423 of 2007 : 4 : 6. In the above circumstances, this Court finds that the impugned order has been passed without extending adequate opportunity to the petitioner to have his case submitted for getting exemption under 3 (1) (b) of the Act, which claim has been put forth by the petitioner vide Ext.P6. Accordingly, Exts. P4 and P5 are set aside and the second respondent is directed to reconsider the matter, taking note of the contentions raised in Ext.P6, after giving opportunity of hearing to the petitioner. It is also made clear that, second respondent is very much at liberty to effect physical verification of the building so as to ascertain the present avocation that is stated as being pursued there and as to the sustainability of the claim for exemption. The matter shall be finalized, as expeditiously as possible, at any rate within 3 months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd