IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 3396 of 2010(Y) ------------------------- PETITIONER(S): --------------- A. IBRAHIMKUTTY, S/O.ABDUL RAHIMAN, RESIDING AT H.NO.44/3757B, KARUKAPPALLY, KALOOR, KOCHI-17, (NOW ABROAD) BY HIS POWER OF ATTORNEY HOLDER, M.A.HAKEEM SHAH, KALOOR, KOCHI-17. BY ADVS. MR. K.A.ABDUL SALAM MR. ANIL KUMAR M.SIVARAMAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUB COLLECTOR, DEVIKULAM, IDUKKI DISTRICT. 3. TAHSILDAR, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 4. VILLAGE OFFICER, KALKOONTHAL VILLGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. GOVERNMENT PLEADER MR.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON 08/04/2010 DELIVERED THE FOLLOWING: WP(C).3396/10 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF SETTLEMENT DEED NO.30/06 DT.4.1.06 OF SRO,KATTAPPANA EXT.P2:- TRUE COPY OF FORM NO.4 NOTICE DT.4.2.08 OF R3 EXT.P3:- TRUE COPY OF FORM NO.6 DEMAND NOTICE DT.16.2.08 OF R3 EXT.P4:- TRUE COPY OF ASSESSMENT ORDER DT.16.2.08 ADDRESSING “IBRAHIMKUTTY AND OTHERS” EXT.P5:- TRUE COPY OF REPRESENTATION DT.28.2.08 BEFORE R3 EXT.P6:- TRUE COPY OF PROCEEDINGS DT.28.2.08 OF R3 EXT.P7:- TRUE COPY OF PROCEEDINGS NO.D3-1285/08 DT.2.11.09 OF R2 EXT.P8:- TRUE COPY OF ORDER UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT,1996 ISSUED TO ROSHNA IBRAHIM EXT.P9:- TRUE COPY OF DO- DO- ISSUED TO SUBAIDA IBRAHIM EXT.P10:- TRUE COPY OF DO- DO- ISSUED TO REHNA IBRAHIM EXT.P11:- TRUE COPY OF DO- DO- ISSUED TO RISWANA IBRAHIMKU EXT.P12:- TRUE COPY OF DO - DO- ISSUED TO THE PETITIONER EXT.P13:- TRUE COPY OF RR NOTICE DT.31.1.2010 RESPONDENT'S EXHIBITS:- NIL OKB //TRUE COPY// P.A. TO JUDGE ORDER ON I.A.1770 /2010 IN W.P(C).3396/ 2010 DISMISSED. SD/- C.K. ABDUL REHIM, JUDGE. 8.4.2010 okb /True copy/ P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.3396 OF 2010 ------------------------------ Dated this the 8th day of April, 2010 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against assessment of Building Tax finalised under Ext.P4 order and Ext.P3 consequential demand, which was confirmed in appeal under Ext.P7 order. The building in question is a six- storied commercial complex constructed at 'Nedumkandam' in 'Udumbanchola' Taluk. The property in which the building situate stands in the name of the petitioner, which he had purchased during the year 1997-98. According to the petitioner, different floors of the building belongs distinctly to the petitioner, his wife and three daughters. Ext.P1 settlement deed was executed by the petitioner assigning undivided shares in the property along with ownership of distinct floors in the name of his wife and three daughters. Accordingly the ground floor and the 5th floor stands in the name of the petitioner, the 1st floor, in the name of his wife, and floor Nos.2, 3 and 4 in the name of three daughters. W.P.(C).3396/2010 -2- Petitioner is working abroad. It is stated that when Ext.P2 notice was received, a representative of the petitioner had produced copy of Ext.P1 Deed before the 3rd respondent and claimed separate assessment with respect to different floors in the name of the respective owners. But without heeding to such request, the assessment was finalised as per Ext.P4 order, treating the entire building as single unit. Ext.P3 is the demand notice issued requesting payment of tax amounting to Rs.3,24,000/-. It is stated that the representative of the petitioner had further submitted Ext.P5 before the 3rd respondent requesting for separate assessment, but the 3rd respondent had only allowed installment facility for payment of the tax amount assessed. It is further stated that the representative of the petitioner had filed appeal before the 2nd respondent. But the same was dismissed through Ext.P7 order holding that no interference is called for with respect to the assessment. 2. It is contended by the petitioner that the building in question will fall within the category under Explanation 2 to Section 2(e) of the Kerala Building Tax Act, 1975. According to the petitioner, the expenses for construction of each floor was W.P.(C).3396/2010 -3- met independently by the petitioner, his wife, and three daughters. Ext.P1 settlement deed through which undivided share in the property as well as ownership of each floors was assigned, is pointed out as basis for claiming separate assessment. It is further pointed out that in all the proceedings of the 3rd respondent, including Ext.P2 to P4, the assessment is seen finalised in the name of “Ibrahimkutty and others”. But no notice was issued at any point of time to anybody else other than the petitioner. Even the notices and other proceedings issued in the name of the petitioner was not properly served on him. It is also contended that the petitioner had never authorised any of his representatives to submit Ext.P5 request before the Tahsildar or to file appeal before the 2nd respondent. Hence the petitioner contended that the entire proceedings issued by the assessing authority as well as appellate authority are not binding upon him. Therefore he is challenging such proceedings in this writ petition. 3. Learned Government Pleader appearing on behalf of respondents pointed out that, going through the contents of Ext.P1 settlement deed itself it is evident that the assignment of distinct floors and undivided share in the land was created after W.P.(C).3396/2010 -4- completion of construction of the building. Further it is pointed out that no evidence was produced before any of the authorities to prove that each of the family members have got independent source of income and that the cost of construction was met by each of them separately. Therefore claim for separate assessment is not at all sustainable, is the contention. 4. On a perusal of Ext.P7 order of the Appellate Authority it is revealed that the Tahsildar had submitted a report admitting that, pursuant to the notice issued the party has appeared for personal hearing and produced copy of Ext.P1 settlement deed. It is also admitted that separate returns were filed in the name of all the five persons. But on a perusal of the order of the appellate authority it is noticed that the contention of the petitioner regarding claim for separate assessment has not seen adverted to or considered by the appellate authority. The question to be considered is as to whether the petitioner and his family members are entitled for separate assessment treating the building as one falling within Explanation 2 to Section 2(e). In a decision of this court in Lissy Vs. Tahsildar (2000 (3) KLT 497) it is held that the benefit of Section 2(e) is applicable not only to the residential apartments but also to commercial W.P.(C).3396/2010 -5- buildings. What should be the criteria for allowing benefit of Explanation 2 to Section 2(e) has been elaborately dealt with by this court in the decision in M/s.Bavasons Constructions (P) Ltd. Vs. State of Kerala (2007 (3) KLT 101) and also in subsequent decisions on the subject. The main aspect which is to be considered is as to who had constructed the building. Whether each persons have derived right for constructing separate portions of the building and whether they had expended their own funds for making such constructions, are the prime criteria to be looked into. 5. In the case at hand the petitioner has got a contention that the appeal was not filed under proper authority and that the appeal was disposed of behind back of the petitioner. It is also evident that the assessment proceedings was issued in the name of “Ibrahimkutty and others”. But admittedly no notice was issued to any of the other family members. Eventhough the petitioner had relied on Ext.P8 to P12 documents to point out that another statutory authority had assessed cess due to the Workers' Welfare Fund in separate names of all the family members, I am of the opinion that those documents have no relevance with respect to the assessment to the Building Tax. W.P.(C).3396/2010 -6- But for the reasons mentioned above I am of the opinion that Ext.P7 order is totally non-speaking and issued without application of mind. Therefore I am of the opinion that Ext.P7 is liable to be quashed and the matter need reconsideration by the appellate authority. 6. Under the above mentioned circumstances the writ petition is disposed of quashing Ext.P7 order of the appellate authority. The 2nd respondent is directed to consider the appeal afresh and to dispose of the same after affording reasonable opportunity to the petitioner to file detailed statement enumerating his contentions and to produce documents in support of his claim, including proof if any regarding expenditure of amounts required for construction, separately by each of the family members. The appeal shall be disposed of after affording opportunity of personal hearing to the petitioner. The appellate authority shall take a decision as to whether the building is liable to be assessed separately as one falling under Explanation 2 to Section 2(e) of the Act or not. In case the appellate authority finds that the building is liable to be assessed separately, notice shall be issued to other family members who claims ownership of distinct portions in the building. The 2nd W.P.(C).3396/2010 -7- respondent shall dispose of the appeal at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 7. Needless to say that amounts if any paid by the petitioner shall be appropriated in accordance with final outcome of the appeal. It is further made clear that the petitioner will be at liberty to file statutory revision against the order of the Appellate Authority, if he is aggrieved by such order. The writ petition is disposed of as with the above directions. C.K.ABDUL REHIM, JUDGE. okb