IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 28154 of 2010(T) -------------------------- PETITIONER(S): --------------- A. HARIF, AGED 46 YEARS, S/O.A.ABDUL KASSIM, VALUPARAMBIL HOUSE, ALISSERY WARD, ALAPPUZHA DISTRICT, MANAGING PARTNER, REPRESENTING MUGAL MARKETING, ALAPPUZHA. BY ADV. SRI.K.RAMANATHAN RESPONDENT(S): --------------- 1. THE VILLAGE OFFICER, VILLAGE OFFICE, ARYAD SOUTH VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT-688542 2. THE TAHSILDAR, TALUK OFFICE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT-688561 3. THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA-688001 4. THE SECRETARY, ALAPPUZHA MUNICIPALITY, ALAPPUZHA DISTRICT-688001. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R4 GOVERNMENT PLEADER SRI BIJOY CHANDRAN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 28154 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 28th day of October, 2010 JUDGMENT Issue involved in this writ petition pertains to assessment completed against the petitioner under the provisions of the Kerala Building Tax Act, 1975. 2. Petitioner constructed a building, which according to him, is a “thatched shed” for the purpose of storing products of the business of a partnership firm to which the petitioner is the Managing Partner. Through Ext.P2 notice the petitioner was called upon for an enquiry for finalizing the assessment. On receipt of Ext.P2, the petitioner submitted Ext.P3 objection, stating that the construction of the building was not complete. Ext.P4 is the copy of occupancy certificate dated 12-1-2009 issued by the Alappuzha Municipality, evidencing that the construction was completed with plinth area of 1408 Sq.mtrs. The 2nd respondent issued Ext.P5 order of assessment imposing tax W.P.(C) No. 28154/2010 2 liability to the tune of Rs.2,64,600/-, computing the plinth area as 1624 Sq. mtrs. According to the petitioner, after Ext.P5, the 2nd respondent had issued yet another order of assessment (Ext.P6), revising the assessment and imposing tax of Rs.2,86,600/- on the basis that the plinth area is 1727.32 Sq. mtrs.. Ext.P7 is the demand notice issued along with the revised order of assessment. 3. On receipt of Exts.P6 and P7, the petitioner submitted Ext.P8 request before the 2nd respondent to cancel the assessment, contending that it was finalized without considering objections raised. But without taking note of any such request, revenue recovery steps was initiated and Ext.P9 revenue recovery notice was issued for realizing the first two quarterly instalments covered under Ext.P7. On receipt of the revenue recovery notice the petitioner again submitted Ext.P10 representation before the 2nd respondent. Since the same was also not considered, the petitioner is approaching this Court being aggrieved by the coercive steps of recovery. W.P.(C) No. 28154/2010 3 4. In a statement filed on behalf of the 2nd respondent it is mentioned that Ext.P5 order was issued on the basis of a report of the Village Officer concerned. It is indicated that the charge Officer had conducted a measurement of the building on the basis of instruction issued by the Tahsildar and confirmed the measurement reported by the Village Officer. Since the petitioner had not raised any objection to the notice, but only objected that the construction is not completed, the assessment was finalized subsequently. But another report was received from the Village Office to the effect that a building with a plinth area of 103.32 Sq. mtrs. was constructed as part of the same building on the western side. On the basis of the said report, an inspection was conducted and after being satisfied that the report is correct, Ext.P6 revised order of assessment was issued, fixing the total plinth area of 1727.32 Sq. mtrs.. Since the petitioner defaulted payment of the quarterly instalments, the revenue recovery requisition was issued, is the contention. W.P.(C) No. 28154/2010 4 5. On a perusal of Annexure-R2(a) which is the copy of the report of the Village Officer submitted to the 2nd respondent, it is evident that a new office building was constructed on the northern side of the existing building. Going by provisions contained in the Building Tax Act, it is evident that once the assessment is completed and if any additional construction is made on the very same building, then the procedure contemplated under section 5(3) or 5(4) as the case may be, should be followed for assessing such additional construction. But if the subsequent construction is a separate building, the assessing authority is not entitled to club together the plinth area and to issue any revised assessment. At any rate there is no provision for revision or re-opening of an assessment once completed, except by way of a rectification of any error apparent on the face of the record, under section 15 of the Act. In the case at hand the 1st respondent had no case that there occurred any error warranting rectification. Therefore, I am of the opinion that the revised order of assessment issued under Ext.P6 and W.P.(C) No. 28154/2010 5 the consequent demand under Ext.P7, are totally unsustainable in the eye of law. Since it was revealed that the petitioner had completed a subsequent construction, I am of the view that the matter need reconsideration at the hands of the 2nd respondent. 6.Under the above mentioned circumstances, the writ petition is allowed. Exts.P6 and P7 order of assessment and notice of demand, and the consequent recovery initiated on the basis of Ext.P9 notice, are hereby quashed. The 2nd respondent is directed to complete the assessment on the basis of Ext.R2(a) report of the Village Officer, taking note of observations contained herein above, after issuing notice to the petitioner and after affording an opportunity of personal hearing. Needless to say that the petitioner shall be afforded with opportunity to object the proposal for assessment and to produce documents if any in support of his claims. Fresh assessment in this regard shall be completed as early as possible, at any rate within a period of two months from the date of receipt of a copy of this W.P.(C) No. 28154/2010 6 judgment. 7. It is further made clear that, since the petitioner was issued with Exts.P6 and P7, within a short period after issuing Ext.P5 order and since the petitioner had filed this writ petition challenging such actions, contentions if any of the petitioner against Ext.P5 order is also left open for agitation. In other words, it is left open to the petitioner to challenge correctness of the assessment completed under Ext.P5, along with challenges if any against the fresh orders to be passed on the basis of the directions issued in this judgment. C. K. ABDUL REHIM, JUDGE. mn.