IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 12907 of 2010 (K) -------------------------- PETITIONER: --------------- M/S.TRICHUR TOURIST COMPLEX (P) LTD., (HOTEL PENINSULA), M.G.ROAD, THRISSUR, REP.BY ITS MANAGING DIRECTOR A.V.BHASKARAN, AGED 63, S/O.VELAYUDHAN, AKKILAPARAMBIL HOUSE, THRISSUR. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVT., TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR. 3. THE TAHSILDAR, TALUK OFFICE, THRISSUR. 4. THE VILLAGE OFFICER, THRISSUR. ADDL.R5 IMPLEADED THE THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, M.O.ROAD, THRISSUR, IS IMPLEADED AS PER ORDER DATED 2.7.10 IN IA.8693/10. BY ADDL. R5 ADVS. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION SRI.LELLULAL T.G.THUNDATHIL BY SENIOR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------- W.P(C) No. 12907 of 2010-K ---------------------------- Dated this the 23rd day of September, 2010. J U D G M E N T Petitioner is challenging Ext.P3 order of assessments issued under the Kerala Building Tax Act 1975. A commercial building constructed by the petitioner having plinth area of 1214.7 sq. meters was assessed for levy of building tax, amounting to Rs.2,43,000/-. On receipt of Ext.P3 order of assessment, the petitioner submitted Ext.P4 before the 3rd respondent, stating that construction of the building in question was not fully complete and the building permit was renewed by the Corporation on 17.3.2010. It was contended that the Corporation has not issued completion certificate/occupancy certificate. Therefore the petitioner sought exemption from payment of the tax demanded. 2. In Ext.P5, a reply was given by the third respondent, mentioning that, the petitioner had not raised any such objection before finalizing the assessment, despite service of notice, and if they are aggrieved they can avail remedy by way of appeal provided under the statute by remitting first instalment of the tax due. The W.P(C) No. 12907 of 2010-K 2 petitioner is challenging Ext.P5 in this writ petition. 3. Ext.P3 order was issued on 23.3.2010. According to the petitioner at the time when the assessment was finalised, the building was remaining incomplete. He relies on the renewal of Building Permit granted by the local authority, and also on the occupancy certificate/completion certificate issued after Ext.P3 assessment. The local authority was impleaded as additional 5th respondent and in their counter affidavit it is mentioned that the petitioner had completed construction and applied for the completion certificate only on 28.4.2010. 4. In the counter affidavit filed on behalf of the third respondent, it is stated that the proceedings for assessment was initiated on the basis of a report received from the Village Officer concerned, on 19.2.2010. It is also mentioned that Ext.R3(b) notice under Section 9 was issued before finalization of the assessment, on 22.2.2010. Eventhough the petitioner had accepted the said notice, nobody appeared on the date fixed for hearing. It is further stated that at the time of inspection also, the petitioner had not raised any objection regarding finalization of the assessment. It is W.P(C) No. 12907 of 2010-K 3 averred that, after completion of the assessment the said authority could not entertain any further objection in view of the appellate remedy provided under the statute and in view of the dictum laid by this Court in the decision in Mother Superior, Congregation of Sisters of Charity V. Tahsildar, Mananthawady (1987(1) KLT 841). It is also mentioned in the counter affidavit that the Village Officer had submitted a report dated 10.6.2010 to the effect that construction of the building was completed and the Corporation had assessed the building on assigning building numbers. Therefore the factual contention that the building was not completed as on the date of assessment is disputed. 5. There is no provision either in the Building Tax Act or in the Rules framed thereunder insisting that an assessment can be made only after the local authority had issued the completion certificate/occupancy certificate. Going by the provisions of the Act it is clear that the incidence of taxation is on completion of the construction. If the assessing authority was satisfied that the construction of the building stood completed, he was justified in finalising the assessment. Therefore the question whether the W.P(C) No. 12907 of 2010-K 4 construction of the building stood completed as on the date of assessment or not, is a factual aspect which need be decided based on evidence regarding the situation which prevailed on the date of assessment. I could not find fault with the third respondent in refusing to entertain a subsequent request for cancellation of the assessment. In fact the assessing authority became 'functus officio' as and when the assessment was finalised. Since the statute provides effective remedy by way of appeal, it was left open to the petitioner to resort to such remedy. Therefore I find no reason to entertain this writ petition, and the same is liable to be dismissed. 6. However, learned counsel for the petitioner sought for a direction to the appellate authority to entertain an appeal which the petitioner is proposing, despite delay caused in filing such appeal. If the petitioner files any statutory appeal against Ext.P3 assessment within a period of 15 days from today, the competent appellate authority is directed to entertain the same, subject to compliance of other conditions stipulated in the statute despite delay if any exist, and to dispose of the same on merits, at the earliest possible, after affording an opportunity of hearing to the petitioner. W.P(C) No. 12907 of 2010-K 5 7. It is made clear that the petitioner is at liberty to seek appropriate interim relief from the appellate authority with respect to payment of the balance amounts, pending disposal of such appeal. The Writ Petition is disposed of with the above directions. Sd/- C.K.ABDUL REHIM JUDGE ab