IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 OP.No. 8560 of 2002(R) ---------------------- PETITIONER: ------------ M.MOIDEENKUTTY, MANAGING PARTNER, MALARVADI ENTERPRISES, "MALARVADI", CIVIL STATION P.O., CALICUT-9. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: ------------- 1. ASSESSMENT OFFICER/ASST.LABOUR OFFICER GRADE I, BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT 1996, CIVIL STATIION, KOZHIKODE. 2. THE SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFERE BOARD, POOJAPPURA P.O., TRIVANDRUM. 3. THE SECRETARY, APARTMENT OWNERS ASSOCIATION, "GATEWAY RESIDENCY",CIVIL STATION P.O CALICUT-673 020. 4. M/S.CORPORATE BUILDERS, K.V.KUTTY BUILDINGS, NADAKKAVU CROSS ROAD, CALICUT-11, REP.BY ITS MANAGING PARTNER. BY ADV. SRI.K.M.SATHYANATHA MENON FOR R4 GOVT. PLEADER SHRI.P.N.SANTHOSH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.8560/02. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ASSIGNMENT DEED IN FAVOUR OF ONE ARUN MENON DTD.16.2.99. P2. COPY OF THE TRIPARTITE AGREEMENT. P3. COPY OF THE ASSESSMENT NOTICE DTD.2.2.02. P4. COPY OF THE REPLY TO R1 DTD.16.1.02. P5. COPY OF THE ORDER BY R1 DTD.30.1.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P. No.8560 of 2002 ================== Dated this the 26th day of May, 2008 J U D G M E N T The petitioner claims that he has sold certain properties to the 4th respondent, in which the 4th respondent constructed flats and sold it to intending purchasers. According to the petitioner, once he has parted with the title to the property, he cannot be made liable for cess under the Building and Other Construction Workers Welfare Cess Act, 1996, in respect of the flats constructed thereon. The petitioner was served with Ext.P3 pre- assessment notice to which the petitioner filed detailed objections, Ext.P4. The grievance of the petitioner in this original petition is that in spite of the same, Ext.P5 order has been passed in a printed form without referring to any of the contentions raised by the petitioner in Ext.P4 objections. The petitioner, therefore, challenges Ext.P5 on the ground of violation of principles of natural justice. 2. No counter affidavit has been filed. The learned Government Pleader submits that the Corporation has reported o.p.8560/02 2 that the entire building tax has been paid by the petitioner and, the petitioner is the one liable to pay cess under the Act. 3. I have considered the parties at length. 4. I am of opinion that issue of pre-assessment notice is not an empty formality. The same is issued to a party to enable him to place his contentions against the proposed assessment on record. When in reply to the pre-assessment notice, the party files objections disclaiming liability to pay the same on specific contentions, the assessing authority has a duty to consider each and every contention of the party and enter a finding either against or in favour of the party to whom pre-assessment notice is issued. In this case, to Ext.P3 pre-assessment notice the petitioner has filed Ext.P4 reply specifically contending that he has sold the property to the 4th respondent in which the 4th respondent had constructed building and, therefore, the petitioner has no liability whatsoever to pay cess under the Act. Ext.P5 order is in a printed form filling up blank spaces. The same does not reveal that any of the contentions of the petitioner has been dealt with and specific findings entered thereon, which is the cardinal requirement of principles of natural justice. o.p.8560/02 3 Therefore, I am satisfied that Ext.P5 is violative of principles of natural justice. Accordingly, Ext.P5 is quashed. If any amount has been paid pursuant to Ext.P5, the petitioner is entitled to reimbursement of the same. However, it would be open to the respondents to make fresh assessment after affording an opportunity of being heard to the petitioner and entering specific finding on each and every contention of the petitioner by a speaking order. The original petition is allowed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.8560/02 4 S.SIRI JAGAN, J. =============== O.P. No.8560 of 2002-R =============== J U D G M E N T 26th May, 2008