IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 OP.No. 697 of 1998(G) --------------------- PETITIONERS: ------------ 1. C.A. AYYAKUTTY ACHARI, CHIRAYIL, PERUNNAI EAST, CHANGANACHERRY. 2. C.A. RAVINDRAN, OF DO.DO. 3. C.A. MANOJ, DO.DO. 4. C.A. RAJAMMAL, OF DO.DO. BY ADV. SRI.K.RAVINDRANATHAN NAIR SRI.S.SOMAN RESPONDENTS: ------------- 1. STATE OF KERALA, BY THE CHIEF SECRETARY TO GOVT., THIRUVANANTHAPURAM 2. TAHSILDAR, CHANGANACHERRY. 3. THE VILLAGE OFFICER, CHANGANACHERRY. BY GOVERNMENT PLEADER SRI. TEKCHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 1197/98, CMP 13298/99 & 30368/99 IN CMP 1197/98N & CMP 2773/02 IN CMP 1197 OF 1998, ALL IN OP 697 OF 1998 DISMISSED 16.7.2008 SD/C.N.RAMACHANDRAN NAIR, JUDGE. SD/-V.K. MOHANAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF SNOTICE OF DEMAND ISSUED BY 2ND RESPONDENT TO THE PETITIONERS NO. E4.7536/96 DATED NIL. EXT.P2 TRUE COPY OF DEMAND NOTICE NO. E4.7551/97 DATED 22.9.1997 ISSUED BY 2ND RESPONDENT TO THE PETITIONERS. EXT.P3 TRUE COPY OF SNOTICE OF DEMAND NO. E4.7551/97 DATED 22.9.97 ISSUED BY 2ND RESPONDENT TO THE PETITIONERS. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- O.P. No. 697 OF 1998 -------------------------------------------- Dated this the 16th day of July, 2008 JUDGMENT Ramachandran Nair,J. Petitioners are challenging the orders issued under Section 15 of the Building Tax Act rectifying the building tax assessment and demanding additional tax of Rs. 88,800/- over and above what is paid by the petitioners for the two storeyed building constructed by them. The ground floor was constructed in the year 1995 and the petitioners remitted Rs. 72,000/- towards building tax. However, later in the year 1996 petitioners constructed first floor of the building after completion of which fresh assessment was made under Section 5(4) of the Act and the petitioners were called upon to pay differential tax of Rs. 1,05,600/-. Petitioners are stated to have made payment of this amount also. However, later the Tahsildar nsoticed that revised rate of tax, which came into force on 22.7.1996, was not taken in to account and consequently he issued rectified order raising additional demand of Rs. 88,800/-. It is against this order that the petitioners have filed this O.P. 2 2. The assessment of the building after extension of the plinth area through construction of first floor is justified under Section 5(4) of the Act. However, the rate of tax to be applied for assessment under Section 5(4) is the rate prevalent on the date of completion of construction of building with additional plinth area. There is nothing on record to prove as to when the construction of first floor was completed by the petitioner. If the completion of first floor was over before 22.7.1996 when the revised rate of tax came into force, then the revision of assessment through proceedings under Section 15 is not tenable. However, if the completion of construction of first floor was over after 22.7.1996, then proceedings under Section 15 demanding additional tax at revised rate is perfectly justified. Since Tahsildar has not mentioned the date of completion of construction of first floor in the assessment order or in the counter affidavit filed by him, we feel he should reconsider the matter with reference to the records and evidence available. It is not known whether petitioners have filed fresh return declaring additional plinth area constructed after completion of construction of first floor, and if so, the date of completion of construction declared by them should be taken into account. In any 3 case, since the crucial date of completion of construction of first floor which reference to which rate of tax has to be applied is not on record, we dispose of the O.P. directing the Tahsildar to verify actual date of completion of construction of the first floor and pass consequential orders within two months from now. Petitioners will produce a copy of this judgment and records before the Tahsildar for him to pass fresh orders. Tahsildar will take into account the evidence produced by the petitioner, refer to the records and pass orders. Interim orders passed by this Court will continue for another three months and recovery thereafter will be based on orders to be passed by the Tahsildar. Since we remand the matter we have not considered the petitioners' challenge against statutory provision. We leave liberty to the petitioners to challenge the provision, if required, after revision of assessment. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. kk 4