IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 WP(C).No. 6648 of 2006(N) ------------------------------------- PETITIONER: ------------------- SHALINI JAYAPRAKASH, KOTTAVATTOM, JAWAHAR NAGAR, KADAVANTHARA, COCHIN-20. BY ADV. SRI.N.SUKUMARAN, ADV. SRI.S.SHYAM, ADV. SRI.N.K.KARNIS. RESPONDENTS: ------------------------ 1. TAHSILDAR, KANAYANNOOR TALUK, ERNAKULAM. 2. REVENUE DIVISIONAL OFFICER, FORT COCHIN. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 4 TO 9 IMPLEADED: 4. MRS. RADHA GOPINADH, W/O. SRI. K. GOPINATH, RESIDING AT 3, STERLING APARTMENTS, BHATTATHIRIPAD ROAD, ELAMKULAM, KOCHI-682017, ELAMKULAM DESOM AND VILLAGE. 5. LAKSHMI MENON.P, W/O. SRI. BHAGYANATH.B., RESIDING AT SNEHA NIVAS, VALLOOR ROAD, POONITHURA POST, PIN: 682 317, POONITHURA DESOM, POONITHURA VILLAGE. W.P.(C). NO.6648/2006-N: 6. BHAGYANATH.B., S/O. K. BALAKRISHNA MENON, RESIDING AT DO. DO. 7. MANOJ KUMAR.S, S/O. SRI. N. SUBHASH CHANDRAN, RESIDING AT “SREECHAKRAM”, PERUNNA.P.O., CHANGANASSERY, PIN: 686 102, PERUNNA KARA, CHANGANASSERY VILLAGE. 8. MARIAMMA JOHNY, W/O. JOHNY AUGUSTINE, RESIDING AT THOTTUVELIL HOUSE, ELANJI POST, PIN: 686 665, ELANJI DESOM AND VILLAGE, MUVATTUPUZHA TALUK. 9. MR. ALEX AUGUSTINE, S/O. SRI. T.C. AUGUSTINE, RESIDING AT THOTTUVELIL HOUSE, ELANJI POST, PIN: 686 665, ELANJI DESOM AND VILLAGE, MUVATTUPUZHA TALUK. *ADDL. RESPONDENTS 4 TO 9 IMPLEADED AS PER ORDER DATED 14/03/2006 IN I.A. NO. 3797/2006. BY GOVERNMENT PLEADER SRI. K.P. PRADEEP FOR R1 TO R3, ADV. SRI.G.BENO FOR R4,R5 & R6. , THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6648/2006-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AGREEMENT ENTERED INTO BETWEEN PETITIONER AND MR. K. GOPINATH DTD. 10/04/2003. EXT.P.2: COPY OF THE AGREEMENT EXECUTED BY MR. GOPINATH AND MRS. RADHA GOPINADH DTD. 07/08/2003. EXT.P.3: COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF SRI. GOPINADH DT. 20/12/2003. EXT.P.4: COPY OF THE SALE DEED EXECUTED IN FAVOUR OF MRS. RADHA GOPINADH DTD. 22/01/2004. EXT.P.5: COPY OF THE RETURN FILED BY RADHA GOPINADH BEFORE THE R.1. DTD 28/02/2005. EXT.P.6: COPY OF THE NOTICE ISSUED BY THE R.1. TO THE PETITIONER BEARING NO. B4.3159/05 DT. 30/03/2005. EXT.P.7: COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 15/04/2005. EXT.P.8: COPY OF THE ASSESSMENT NOTICE ISSUED BY THE R.1. TO THE PETITIONER BEARING NO. B4-3158/05 DTD. 10/05/2005. EXT.P.9: COPY OF THE REPLY TO EXT.P.8 SUBMITTED BY THE PETITIONER DTD. 24/05/2005. EXT.P.10: COPY OF THE NOTICE ISSUED BY THE R1.. TO THE PETITIONER BEARING NO. B4-3159/05 DTD. 16/06/2005. EXT.P.11: COPY OF THE OBJECTION TO EXT.P.10 FILED BY THE PETITIONER DTD. 29/06/2005. EXT.P.12: COPY OF THE ORDER OF THE R.1. BEARING NO. B4.3519/05 DTD. 08/07/2005. EXT.P.13: COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P.12 DTD. 21/10/2005. EXT.P.14: COPY OF THE ORDER OF THE R.2. BEARING NO. G. 5206/05 K. DIS. DTD. 24/01/2006. EXT.P.15: COPY OF THE RECEIPT ISSUED BY THE POONITHURA VILLAGE OFFICE DTD. 19/10/2005 FOR PAYMENT OF 1/4 TH TAX DEMANDED IN EXT.P.12. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. T.R.RAMACHANDRAN NAIR, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C). No.6648/2006-N ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 25th day of July, 2008 J U D G M E N T The petitioner has approached this Court challenging Exts.P12 and P14, the assessment and appellate orders passed by the authorities concerned under the Building Tax Act. The question involved is whether the petitioner who is not the owner of the building in question can be assessed to building tax. The additional respondent Nos.4 to 9 are the allottees of the flats who have purchased the flats as per separate sale deeds. The petitioner was the owner of 7.4 cents of land, wherein the residential apartments have been constructed. For the purpose of construction, he had entered into an agreement as per Ext.P1 with a builder who by separate agreements with the prospective purchasers constructed the flats in question. When the constructions were completed, the sale deeds were executed and one of the sale deeds has been produced as Ext.P4. It is pointed out that the constructions were made at the expense of the prospective purchasers. It is also stated that the allottees have W.P.(C).NO.6648/2006-N -:2:- furnished separate returns and one of them has been produced as Ext.P5 and the petitioner did not file any return also. 2. Ext.P8 notice was issued to the petitioner. The petitioner submitted a reply to Ext.P8 notice as per Ext.P9 pointing out that the flat owners have to be assessed and the petitioner has no liability. But overlooking the same, the assessment was finalised making the petitioner liable to pay the tax to the tune of Rs.81,600/-. Even though an appeal was filed that was also dismissed. 3. Heard both sides. 4. The matter in issue is covered by various decisions of this Court, viz. Lissy v.Tahsildar [2000 (3) KLT 497] and a recent decision of this Court in Bavasons Constructions (P) Ltd. v. State of Kerala [2007 (3) KLT 101]. In the latter decision in paragraph '9', the principles and the procedure to be followed in the matter of assessment of tax in similar cases have been laid down. Paragraph '9' is extracted below:- 9. the petitioners-builders shall produce materials before the concerned Tahsildars regarding the allotment of individual flats to the respective owners. They shall also produce the agreements entered into with the owners of flats and also W.P.(C).NO.6648/2006-N -:3:- evidence to show that the payments were made by the allottees from time to time to foot the bills for the construction. They shall produce their books of accounts and bank statements. They shall also produce the deeds, assigning the undivided interest in the property. They shall produce those materials before the concerned Tahsildars before 30/04/2007. If those materials are produced to show that the construction of the flats is covered by Explanation 2 to S.2(e)of the Building Tax Act, then, the assessments shall be made separately. The assessing authorities shall consider the claim relating to each flat and render a separate speaking decision with reference to each flat. A common order can be passed for each residential complex. But, in that order, there should be separate finding regarding each flat/apartment. In case any flat is remaining unallotted, the assessment in respect of such flat shall be made, treating the builder as the owner. In case, in relation to a particular flat, sufficient materials are not produced to support the claim for the benefit of Explanation 2 to S.2(e), then also, the assessment shall be made, treating the builder as the owner of the apartment. While making separate assessments of the flats, the common area shall also be divided on pro rata basis, so that the entire built up area of the building is assessed to building tax. The petitioners shall also furnish the correct addresses, as far as possible, of W.P.(C).NO.6648/2006-N -:4:- the allottees of the flats, to the assessing authorities. The assessing authorities shall afford an opportunity of being heard to the petitioners-builders and the individual flat owners and pass final orders in the matter, as far as possible, before 30/07/2007. They shall, as stated earlier, deal with the assessment relating to every flat/apartment separately, with reference to the documents produced. In this context, it is apposite to remind the assessing authorities, the powers conferred on them under S.17 of the Act. The said section reads as follows: “Power to take evidence on oath etc.-- The assessing authority, the appellate authority and the revisional authority shall, for the purpose of this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), when trying a suit, in respect of the following matters, namely:-- (a) enforcing the attendance of any person and examining him on oath or affirmation; (b) compelling the production of documents; (c) issuing commissions.” 5. In view of the above legal position, herein the assessment made against the petitioner cannot be upheld. Therefore, Exts.P12 and P14 are quashed. The assessing authority will issue fresh notice to the additional respondent Nos.4 to 9 and the petitioner herein, and decide the matter W.P.(C).NO.6648/2006-N -:5:- afresh in accordance with law and in accordance with the principles as stated by this Court in the decisions referred to above. Parties will be given sufficient opportunities to produce evidence. If ultimately the petitioner is exonerated, then the amount paid by the petitioner will be refunded. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, Judge ms