IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 29425 of 2010(C) -------------------------- PETITIONER(S): --------------- BIJU M.K., W/O.SYED MUHAMMAD, AGED 40 YEARS, VALIYAVEETTIL HOUSE, CHERANELLOORE P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.K.AJITHKUMAR (VALATH) RESPONDENT(S): --------------- THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, KOCHI-11. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 29425 OF 2010 ------------------------------------- Dated this the 29th day of September, 2010 JUDGMENT Challenge in this Writ Petition is against assessment and demand of building tax finalised through Exts. P4 and P5, under the provisions of Kerala Building Tax Act, 1975. Contention of the petitioner is that the building in question is a factory coming within the purview of Section 3(1)(b) of the Act and hence it is liable to be exempted. It is stated that on receipt of Ext.P3 notice issued under Section 9(2) of the Act, the petitioner submitted a claim for exemption before the respondent. But without considering such claim the assessment was finalised, is the contention. 2. Learned Government Pleader appearing for respondents, on the basis of instructions received, submitted that, pursuant to Ext.P3 notice the petitioner had appeared before the respondent and raised a claim seeking exemption. However no written application was 2 WP(C) No. 29425/2010 submitted in this regard. 3. As per Section 3 (1)(b) of the Act, factories and workshops are exempted from the purview of the Act. Section 3 (2) of the Act provides that if any question arises as to whether a building will fall under Sub Section 1 of Section 3, it shall be referred to the Government and the Government should decide the question after hearing the interested parties. Hence it is clear from the provisions that if the assessing authority was not convinced about the claim for exemption the matter ought to have been referred for decision of the Government. Going by Ext.P4 order of assessment, which is issued in a printed from, it is not evident as to whether the assessing authority had considered the claim for exemption. That be so, I am of the opinion that Ext.P4 assessment as well as Ext.P5 demand is unsustainable in the eye of law. 4. Under the above circumstances, the Writ Petition is allowed and Exts.P4 and P5 are hereby quashed. The 3 WP(C) No. 29425/2010 matter is remitted back to the respondent for fresh consideration. It is made clear that if the claim raised by the petitioner seeking exemption is not liable to be allowed, the assessing authority shall resort to the procedure contemplated under Section 3 (2). 5. A decision in this regard shall be taken after affording an opportunity of hearing to the petitioner as early as possible, at any rate within a period one month from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE dnc