IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 2224 of 2011(C) --------------------------------------- PETITIONER(S): ------------------------- MOHAN KUMAR.K.C., S/O.K.CHANDRASEKHARAN NAIR, BASS AUTOMOBILES, RESIDING AT THIRUVONAM, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. SRI.B.MOHANLAL, SRI.SAIJU S. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (SPECIAL CELL) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE TAHASILDAR, TALUK OFFICE, KOTTARAKKARA P.O., KOLLAM-691 506. 3. THE VILLAGE OFFICER, KOTTARAKKARA P.O., KOLLAM DISTRICT-691 506. R1 TO R3 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 2224 of 2011 --------------------------------- Dated this the 21st day of February, 2011 JUDGMENT Ext.P6 order of assessment completed under the Kerala Building Tax Act 1975 is challenged in this writ petition. According to the petitioner, the building in question is a workshop wherein the petitioner is conducting automobile works. Exts.P1 to P4 are the copies of licence issued by the Grama Panchayat as well as Ext.P5 is the certificate issued by the Department of Industries, Government of Kerala. It is the case of the petitioner that the building in question is exempted from the purview of the Kerala Building Tax Act as per section 3 (1)(b) and the assessment itself is made without jurisdiction. It is further contended that, on receipt of Ext.P6 order of assessment, the petitioner had preferred Ext.P9 before the 2nd respondent requesting for a reference of the dispute for decision of the Government as provided under section 3(2) of the Act. But inspite of receipt of that request, the Tahsildar has not taken any action. Hence interference of this court is invited. WP(C) .2224/2011 2 2. In a statement filed on behalf of the 2nd respondent it is contended that, at the time of finalisation of the assessment the petitioner has not raised any such claim that the building in question is used as workshop for repairing or servicing of automobiles, and hence the assessment was finalised treating the building as falling under the category of 'other Buildings'. It is further stated that Ext.P9 was received after a period of one year from finalisation of the assessment and that no action was taken on such request. 3. Considering the rival contentions as above, I take notice that Ext.P6 order of assessment was issued in a printed form. It is not discernible from the said order as to whether any notice was issued to the petitioner calling for filing return or calling for objection against finalisation of the assessment, as contemplated under section 7(3) or section 9(2) of the KBT Act. It is also not discernible as to whether the petitioner had submitted any objections or claims against the assessment. However it is pertinent to note that the assessment need be finalised on the basis of physical verification or inspection to be conducted to ascertain the plinth area. If the workshop is functioning in the building then the proceedings for assessment initiated is without WP(C) .2224/2011 3 jurisdiction. Eventhough it is evident that the 2nd respondent will become 'functus officio' on finalising the assessment, the petitioner is always at liberty to seek rectification of mistake if any occurred. 4. Considering the facts and circumstances, I am of the view that the matter need reconsideration at the hands of the 2nd respondent, in order to ascertain whether the building in question is a workshop liable to be exempted under Section 3(1) (b). 5. Therefore, the writ petition is allowed and Ext.P6 is hereby quashed. The 2nd respondent is directed to finalise the assessment afresh, after affording a reasonable opportunity of hearing to the petitioner. The petitioner will be at liberty to raise the claim for exemption under section 3(1)(b), and to produce proof in support of such claim. If the 2nd respondent is not convinced with claim so made, he shall refer the dispute for decision of the State Government as contemplated under section 3(2). 6. The assessment in this regard shall be finalised after taking note of Ext.P9 and further objections/claims if any filed, after affording an opportunity of personal hearing to the WP(C) .2224/2011 4 petitioner as early as possible, at any rate within a period of one moth from the date of receipt of a copy of this judgment. 7. It is brought to my notice that the petitioner had remitted 1/4th of the amount of tax assessed. Needless to say that appropriation of the said amount will be subject to final outcome of the matter. C.K.ABDUL REHIM,JUDGE pmn/ WP(C) .2224/2011 5