IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 30364 of 2009(M) -------------------------- PETITIONER(S): --------------- KAVUNGAL PALLI MUEENUL ISLAM COMMITTEE, P.O.VENGARA, MALAPPURAM DISTRICT REP.BY ITS SECRETARY V.T.HAMZA HAJI. BY ADV. SRI.M.MUHAMMED SHAFI RESPONDENT(S): --------------- 1. STATE OF KERLA REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, MALAPPURAM. 3. THE TAHASILDAR, TIRURANGADY, MALAPPURAM DISTRICT. 4. REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SRI.MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.30364 OF 2009 ------------------------------ Dated this the 29th day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is the committee of a mosque which is conducting a “Dars” (facility where education on religious rites is being imparted, usually establishment attached to mosques). The petitioner had constructed a building for the purpose of providing residence to students of the “Dars”. Dispute is regarding liability for payment of Building Tax with respect to the said building. According to the petitioner the building in question will fall within the exempted category provided under Section 3(1)(b), because imparting of religious education is purely a religious and charitable activity and the building is used principally for that purpose. The assessment was completed without considering any such contentions and the order of assessment is seen issued only in a printed format, which will not reveal as to whether any such contention was raised or not. The legal principles in this regard is well settled that the assessing authority is bound to issue speaking orders, which should reflect proper application of mind with due advertence to objections/contentions if any raised by the assessee. Eventhough W.P.(C).30364/09-M 2 the petitioner filed appeal against the assessment the same was rejected as one filed out of time. The petitioner filed revision against the appellate order. But the District Collector had rejected the revision assigning the reason that the appeal was not filed within the time limit prescribed. It is further noticed that against imposition of Luxury Tax under Section 5A the petitioner made a representation before the Government and as per Ext.P6 the Government have rejected the claim observing that the building in question is having plinth area beyond the limit prescribed under Section 5A. But it seems that the question regarding eligibility for exemption was never an issue considered by the Government. 2. Section 3(2) of the Kerala Building Tax Act, 1975 provides that if there arises any dispute as to whether a building falls under sub-section (1) of Section 3, such dispute shall be referred to decision of the Government and the Government shall decide the question after giving opportunity of hearing to the party concerned. Since question raised in this case pertains to eligibility for exemption under Section 3(1) of the Act, I am of the opinion that it is only just and proper in the interest of justice to permit the petitioner to raise such dispute before the assessing authority, who in turn should refer it for decision of the Government under Section 13(2). W.P.(C).30364/09-M 3 3. In the result the writ petition is disposed of quashing Ext.P1 assessment, which stands confirmed through Ext.P4 and P5. The petitioner is directed to submit detailed objection regarding the assessment before the Tahsildar within a period of two weeks from the date of receipt of a copy of this Judgment. The 3rd respondent Tahsildar is directed to refer the dispute if received as above, to the Government for deciding the issue as provided under Section 13(2). 4. Needless to say that the Government shall consider and dispose of the matter if received, after affording an opportunity of hearing to the petitioner, as early as possible. Appropriation of amounts if any already remitted, shall be made in accordance with the outcome of the decision of the Government. C.K.ABDUL REHIM, JUDGE. okb