IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WP(C).No. 32206 of 2009(U) ----------------------------------------- PETITIONER(S): ------------------------ 1. ALI V. , S/O. MOIDEEN HAJI, VALLIKKADAN HOUSE, PALATHARA, KOTTAKKAL. 2. M/S INDUS MOTOR CO. LTD., OPPOSITE SOUTH GATE OF SHIP YARD, M.G. ROAD, ERNAKUAM REPRESENTED BY ITS ADMINISTRATIVE MANAGER, SHRI M.R. SOORAJ. BY ADV. MR.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S): -------------------------- 1. THE TAHSILDAR, THIRUR TALUK, TALUK OFFICE, MALAPPURAM -2. 2. THE VILLAGE OFFICER, KOTTAKKAL VILLAGE, VILLAGE OFFICE, KOTTAKKAL. BY GOVT. PLEADER MR.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 32206 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2009 J U D G M E N T 1. Challenge in this writ petition is against the assessment completed under the Kerala Buildings Tax Act, 1975, as per Ext.P5 order, and against the demand made as evidenced from Ext.P2 notice. According to the 1st petitioner, the building in question is situated in a property owned by him. But the building was put up by the 2nd petitioner, on the basis of a lease agreement entered between them. The 2nd petitioner is the authorized dealer of Maruti vehicles and the building in question is a workshop wherein service and repairs of vehicles is being conducted. The 2nd petitioner has got registration under the provisions of the Factories Act, as evidenced by Ext.P1. Therefore the petitioners are disputing assessment on two grounds. One is that the 1st petitioner against whom the assessment is made, is not the owner of the building and secondly the W.P.(C)No. 32206 of 2009 -2- building in question is liable to be exempted under Section 3 (1) (b) of the Act. It is contended that the petitioners were not given opportunity to bring the claim for exemption to the notice of the assessing authority before completing the assessment. However it is submitted that on receipt of notice demanding payment of tax the petitioners have submitted Exts.P3 & P4 representations respectively, before the 1st respondent. But the 1st respondent had not considered the same, because the assessment stood completed. 2. Learned Government Pleader appearing on behalf of respondents submitted that the 1st petitioner had filed return conceding the plinth area of the building as 1896 sq.mtr. But on measurement it is found that the building is having an area of 1876.05 sq. mtrs only. It is further contended that even at the time of filing the return or at the time of personal hearing afforded, the 1st petitioner has not raised any objection regarding the assessment being completed. W.P.(C)No. 32206 of 2009 -3- 3. On a perusal of Ext.P5 it is noticed that the order of assessment is issued in a printed form without even scoring off the irrelevant portions. It is not discernible from Ext.P5 as to whether any notice as contemplated under Section 9 was issued to the petitioners and as to whether the petitioners have raised any objections or not. Even the factum of personal hearing conducted as alleged, is not discernible from Ext.P5. It is not evident as to whether the 1st respondent had persued any documents with respect to ownership of the building. The very basic contention is that the assessment is made against the 1st petitioner, whereas the 2nd petitioner is the owner of the building. It was not seen considered by the 1st respondent. 4. It is settled legal principle that while completing assessments imposing tax liability, the assessing authorities are bound to issue speaking orders, with proper application of mind. The assessment orders should reflect proper advertance to the contentions/objections if any raised by the assessee, and that the assessment is completed on proper W.P.(C)No. 32206 of 2009 -4- application of mind, following principles of natural justice. In the case at hand the petitioners have produced Ext.P1 certificate of registration issued under the Factories Act. Whether the building in question is fully used as a factory or any part of there alone is used for the purpose coming within the definition of Factories etc; are question to be looked into. So also the assessment need to have been finalised on the persons who is the owner of the building. Considering the fact that Ext.P5 is a totally non-speaking order, I am of the opinion that the matter requires reconsideration at the hands of the 1st respondent. 5. Under the above circumstances Ext.P5 order of assessment and Ext.P2 demand notice are hereby quashed. The 1st respondent is directed to consider the matter afresh and to finalise the assessment after issuing notice to both the petitioners and after affording proper opportunity to them to produce evidence regarding their claims. If there arise any dispute regarding eligibility for exemption, 1st respondent shall take note of procedure contemplated W.P.(C)No. 32206 of 2009 -5- under Section 3(2) of the Building Tax Act. A fresh decision in this regard shall be taken as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE shg/