IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 22282 of 2008(C) ---------------------------------- PETITIONER: ------------------ JOSE MANI, S/O.LATE K.I.MANI, 2284, HAL 2ND STAGE, INDIRA NAGAR, BANGALORE-560 008. BY ADV. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN RESPONDENT: --------------------- TAHSILDAR, KANAYANNUR, KANAYANNUR TALUK OFFICE, COCHIN-682031. BY GOVERNMENT PLEADER SHRI BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 22282 OF 2008 C -------------------------------------- Dated this the 11th August, 2008 JUDGMENT Petitioner challenges Ext.P16. By Ext.P16, the respondent Tahsildar has assessed the petitioner under the Kerala Building Tax Act. Petitioner had approached this Court earlier culminating in Ext.P6 Judgment. By Ext.P6, the matter was remitted back for redoing the assessment. In the course of the Judgment, it was ordered as follows: "Ext.P1 in such circumstances, is set aside on condition that the petitioner shall pay an amount of Rs.2,00,000/= (Rupees two lakhs) within two weeks. The petitioner shall produce whatever materials he wants to rely upon before the assessing Officer along with the amount to be paid as aforesaid. It is open to the assessing Officer to issue notice to the flat owners and the petitioner shall furnish the name and other details of the flat owners along with the materials as aforesaid. The assessing Officer shall hear the parties and dispose of the matter after consideration o such materials." WPC.22282/08 C 2 It is pursuant to the same that Ext.P16 has been passed. According to petitioner, petitioner has given the names of the flat owners. Ext.P11 notice dated 31.10.2007 was issued by the respondent Tahsildar to the Secretary of the Flat Owners' Association. Ext.P12 dated 24.11.2007 is a reply devised by the Secretary of the said Association to the Tahsildar wherein it is stated as follows: "Ref: K.B.T. Act Building Tax. We are in receipt of your letter B.5-7329/06 dt. 31.10.07 regarding above. In this connection, we would like to inform you that the letter dated 15.10.07 sent to us was forwarded to the builder of this apartment complex M/s. Panjos Builders Pvt. Ltd. to enable them initiate the process for settling this claim of your good office as the same is payable by the builder. The copy of your above referred letter, to the builder was also forwarded to your office under certificate of posting for information. In view of above, we request you to take up the subject claim with M/s. Panjos' Builders Pvt. Ltd." WPC.22282/08 C 3 2. It is the specific case of the petitioner that Ext.P13 (a) has been produced as the names of the flat owners and the area for building tax. Petitioner was served Ext.P14 assessment notice to which the petitioner sent Ext.P15 reply and Ext.P16 order came to be passed followed by demand notices. 3. I heard Shri E.R. Venkiteswaran, learned counsel appearing for the petitioner and also the learned Government Pleader. Learned counsel for the petitioner would contend that going by the terms of Ext.P6 Judgment, the Tahsildar is obliged to issue notice to the individual flat owners. He has also produced certain documents in support of the claim of the petitioner vide IA No.10422/08 filed by the Administrative Officer of M/s. Panjos Builders Pvt. Ltd. of which the petitioner is admittedly the Managing Director. Admittedly, the petitioner is the owner of the land and Permit has been obtained in his name. Petitioner has also produced Occupancy Certificates and Ownership Certificates issued by the Cochin Corporation to various flat owners and, more importantly, the Balance Sheets WPC.22282/08 C 4 for the year 2004 - 2005 and 2005 - 2006. This is to point out that the Balance Sheets evidence payment of huge sum by way of advance which is sought to be related to the amounts paid by the flat owners in pursuance of the building agreements entered into by them with the builders. This is again to show that the material would show that the petitioner is entitled to the benefit of Explanation to Section 2(e) of the Kerala Building Tax Act. But, most of the documents produced along with I.A. No.10422/08 were not made available before the assessing authority. In other words, the documents which were present before the assessing authority even after remand are as follows: 1) Returns filed by 26 persons. 2) Registered Sale Deeds. 3) Construction Agreements which are not registered. 4) Plan. 5) Building Permit. 4. In the Writ Petition, the averment is that the petitioner had filed return in respect of the whole building. The principal WPC.22282/08 C 5 complaint of the petitioner is that notice has not been issued to the individual flat owners and the individual flat owners would have then produced materials to show that they have contributed to the cost as required under Section 2(e) of the Act. Learned Government Pleader points out that what is stated in Ext.P6 Judgment is that it is open to the respondent to issue notice to the flat owners. Of course, notice has been issued to the residents' Association which, as already noted, has given Ext.P12 reply. Whatever that be, I feel that this is a matter where the petitioner should pursue the remedy by way of Appeal. Learned counsel for petitioner submits that the petitioner has already paid Rs.2 Lakhs. Learned Government Pleader submits that the sum to make up the first quarterly payment for maintaining the Appeal is Rs.1,88,000/=. In the circumstances, the Writ Petition is disposed of as follows: If the petitioner file an Appeal within three weeks from the date of receipt of a copy of this Judgment accompanied by the payment of Rs.1,88,000/=(Rupees One Lakh & Eightyeight WPC.22282/08 C 6 Thousand), the Appellate Authority will consider the same on merits, after affording an opportunity of hearing to the petitioner. It is open to the petitioner to produce such documents before the Appellate Authority as he is advised to produce and the Appellate Authority will consider the same also and take a decision on the Appeal in accordance with law. The recovery proceedings against the petitioner will be kept in abeyance for a period of one month from today, in order to facilitate the petitioner to file Appeal as aforesaid. The Appellate Authority will take into consideration the decision of this Court in Bavasons Constructions (P) Ltd. v. State of Kerala (2007 (3) KLT 101), while taking a decision on the Appeal. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge