IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 21748 of 2010(P) -------------------------- PETITIONER(S): --------------- M/S.DREAM WORLD WATER PARK, ATHIRAPPALLY ROAD, CHALAKUDY, TRICHUR, REPRESENTED BY ITS JOINT MANAGING DIRECTOR, SIMON K.FRANCIS. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): --------------- 1. THE TAHSILDAR, MUKUNDAPURAM TALUK, TRICHUR. 2. THE REVENUE DIVISIONAL OFFICER, TRICHUR. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (SPECIAL CELL) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.21748 of 2010-P ---------------------------- Dated this the 16th day of September, 2010. J U D G M E N T Challenge is against the assessments completed under the provisions of the Kerala Building Tax Act, 1975. The assessments relates to a building situated in an amusement park owned by the petitioner. Initially the assessment was completed on the basis that the total plinth area is 5124.64 Sq.M bifurcating the same as 4602.45 as commercial area and 522.19 for residential area. The petitioner filed appeal against the assessment by remitting 1/4th of the tax amount. Subsequently the appeal was disposed of through Ext.P6 order. Wherein the plinth area was enhanced by the appellate authority to 5500.45 Sq.M and directing to treat the entire area as commercial building. Pursuant to Ext.P6, revised assessment was issued raising the demand to a higher amount than what was originally assessed. The matter was taken up before this Court in W.P(C) No.37489 of 2008. In Ext.P8 judgment, the appellate order was quashed and the matter was remanded for re-consideration by the appellate authority. The further condition for payment of W.P(C) No.21748 of 2010-P 2 Rs.2,50,000/- was also imposed. The petitioner remitted the said amount and submitted Ext.P9 objection before the appellate authority. In Ext.P9, the petitioner claimed an exemption from payment of building tax on the ground that the building in question is a factory coming within the definition of Factories Act. On receipt of Ext.P9, the appellate authority issued Ext.P10 order. Wherein the petitioner was directed to submit an application seeking exemption, before the Government through the Assessing Authority. Ext.P11 is the application submitted before the Government in compliance with the direction issued by the appellate authority. However, without waiting for any decision from the Government, the appeal was dismissed through Ext.P12 order stating that the petitioner had failed to obtain necessary orders from the Government allowing exemption from the payment of tax. Ext.P12 is under challenge in this writ petition. In a statement filed on behalf of the second respondent, it is mentioned that the appeal was dismissed since the petitioner has not produced any documents from the Government, conferring benefit of exemption under the provisions of the Act. 2. As per Section 3(2) of the Act, if any question arises as to whether a building falls under any of the categories eligible for W.P(C) No.21748 of 2010-P 3 exemption, it shall be referred to the Government and the Government shall decide the question after giving the interested parties an opportunity of hearing. It is further noticed that the powers vested in the appellate authority are extensive with that of the authority as per Section 11 of the Act. When a claim for exemption is raised before the appellate authority, the proper course ought to have been considered by the said authority and if it is found that there exists a genuine dispute regarding eligibility for exemption, the authority could have referred the matter for decision of the Government provided under Section 3(2). The direction contained in Ext.P10 requesting the petitioner to approach the Government seeking exemption, is a wrong procedure suggested by the appellate authority, going by the above said provisions. However, further dismissal of the appeal observing that the petitioner could not procure exemption order from the Government is highly illegal and unsustainable in view of the provisions as stated above and in view of the fact that the appellate authority had directed the petitioner to approach the Government. 3. Under the above circumstances, I am of the opinion that the matter need be remanded to the appellate authority for fresh W.P(C) No.21748 of 2010-P 4 consideration and disposal. Exts.P10 and P12 are hereby quashed. Appellate authority is directed to restore the appeal on its files and to consider the appeal and Ext.P9 objection submitted by the petitioner. On consideration, the appellate authorities convince that there is a genuine claim raised with respect to the exemption, which could not be allowed. The matter need be referred for decision of the Government as provided under Section 3(2) of the Act. However a decision in this regard shall be taken by the appellate authority as early as possible, after affording an opportunity of hearing to the petitioner, at any rate within a period of one month from the date of receipt of a copy of this judgment. 4. It is made clear that recovery of the balance amount due shall not be pursued till a final decision is taken by the appellate authority or by the Government as the case may be. The Writ Petition is disposed of as above. C.K.ABDUL REHIM JUDGE ab