IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 WP(C).No. 33622 of 2010(C) ---------------------------------- PETITIONER(S): ------------------- B.M.EDWARD, AGED 94 YEARS, S/O.LATE MANIK, BALUMMEL HOUSE, KANNAMALI, COCHIN-7. BY ADV. SRI.JOSEPH FRANKLIN RESPONDENT(S): -------------------- 1. THE TAHSILDAR,KOCHI TALUK,KOCHI-1 2. THE VILLAGE OFFICER, KUMBALANGI, COCHIN-7. BY GOVT.PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 33622/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ASSESSMENT ORDER NO.B3-118 25/05 DATED 17/05/2006 ISSUED BY (ASSESSING AUTHORITY)TAHSILDAR, KOCHI. P2: COPY OF THE ORDER NO.G-3161/06-K.DIS. DATED 07/02/2007 ISSUED BY REVENUE DIVISIONAL OFFICER, FORT KOCHI. P3: COPY OF THE ORDER NO.B10-21864/07/K.DIS. DATED 23/05/2007 PASSED BY DISTRICT COLLECTOR, ERNAKULAM. P4: COPY OF THE LETTER DATED 27/06/2010 ISSUED BY TAHSILDAR, KOCHI. P5: COPY OF THE REPLY DATED 09/03/2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. P6: COPY OF THE LETTER RECEIVED FROM THE 1ST RESPONDENT DATED 29/03/2010. P7: COPY OF THE INSPECTION REPORT P8: COPY OF THE ASSESSMENT ORDER B3-11825/2005 DATED 03/05/2010. P9: COPY OF THE REVENUE RECOVERY PROCEEDINGS DATED 27/09/2010 P10: COPY OF THE LETTER DATED 13/10/2010 ISSUED BY THE PUBLIC INFORMATION OFFICER, TAHSILDAR, KOCHI. RESPONDENT'S EXHIBITS: R1(a):COPY OF FROM 2 RETURN R1(vb):COPY OF LETTER DATED 08/03/2010 FROM CORPORATION COCHIN. /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.33622 of 2010 ------------------------------- Dated this the 15th day of June, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P8 order of assessment issued by the 1st respondent under the Kerala Building Tax Act, 1975. The 1st respondent had completed assessment with respect to a commercial building owned by the petitioner, reckoning its plinth area 788.10 M2 and imposing tax liability to the tune of Rs.1,46,250/-. Appeal filed by the petitioner against the said assessment was dismissed. In a revision petition filed before the District Collector, the matter was remanded for completing fresh assessment. Before the 1st respondent, the petitioner raised contention that the building in question was in existence prior to commencement of the Act, and hence the same is not liable to be assessed. But the 1st respondent took the view that, the petitioner had failed to prove that the construction of the building was completed prior to the commencement of the Act. Further it is found that, 2 W.P.(C).No.33622 of 2010 considering Section 5(3) of the Act, the building is liable to be assessed because the petitioner had undertaken renovation of the building. It is stated that the petitioner had already remitted a sum of Rs.75,805/- during the pendency of the appeal and revision. The revised order issued by the 1st respondent under Ext.P8 is challenged on the ground that the same is not in accordance with the provisions of the statute and not in compliance of the direction issued by the District Collector. 2. According to the petitioner, the building in question was purchased by him during the year 1956. It is also denied that the petitioner has effected any major repair or improvement in respect of the building, as a result of which there occurred any increase in the plinth area of the building. Therefore, the impugned assessment is totally unsustainable, is the contention. Petitioner also raises a contention that, inspite of statement made to the effect that the assessment was completed under Section 5(3), the 3 W.P.(C).No.33622 of 2010 entire plinth area has been reckoned for imposing building tax. Therefore, the assessment is challenged as one legally unsustainable. 3. From Ext.P3 revisional order issued by the District Collector, it is evident that the matter was remanded to the 1st respondent with a specific direction to ascertain whether the major repair or improvement was done after the KBT Act came into force and also to ascertain what is the exact increase in the plinth area of the building, after such major improvements. From Ext.P4 it is evident that, subsequent to the remand made, the 1st respondent has issued notice requiring the petitioner to produce proof of 'Property Tax Assessment Register' from the Corporation authorities in order to prove that the building in question was constructed prior to the commencement of the Act. But it is evident that the Cochin Corporation had reported that the Asssessment Register pertaining to the year prior to 1989 is not available. It is mentioned in Annexure R1(b) report of the 4 W.P.(C).No.33622 of 2010 Cochin Corporation that, the assessment register pertaining the the period 1989-1994 was made available. Contention of the petitioner is that he had produced the Title Deed with respect to building which was purchased in the year 1956, which will indicate that the building was there in existence at the time of the purchase itself. 4. In the statement filed on behalf of 1st respondent it is mentioned that, the petitioner had failed to produce any proof through documentary evidence to establish that the building in question was in existence on the date of commencement of the statute. It is further mentioned that, from an inspection conducted through the Village Officer and the Deputy Tahasildar, the plinth area was assessed and it was also revealed that major modification was made to the building which had resulted in increase of the plinth area. However, it is stated that the petitioner had conceded at the time of hearing that he had effected certain modifications by constructing a new a car-porch having 5 W.P.(C).No.33622 of 2010 plinth area of 54 M2. Annexure R1(a) is the copy of the return filed by the petitioner, wherein it is admitted that the new construction is having an area of 54 M2. 5. The question to be considered is as to whether Ext.P8 order of assessment was completed in accordance with the provisions of the statute and also in accordance with the directions issued by the revisional authority under Ext.P3. Going by Section 2(h) of the Act, any repair or improvement of an existing building as a result of which the plinth area of the building is increased, will be considered as “major repair or improvement”, for the purpose of assessment. In the case at hand, it is evident from the Title Deed of the petitioner that the building in question was in existence at the time of purchase, in the year 1956. From Annexure R1(b) report of the Cochin Corporation, it is evident that the building was assessed during the periods from 1989 to 1994. Under normal circumstances, if the building was constructed at any time after commencement 6 W.P.(C).No.33622 of 2010 of the Act, it would have been assessed with Building Tax at that time itself. Admittedly, the alleged repair/improvement was made only during the year 2006. Therefore, from the available evidence it can be concluded that the building in question was in existence prior to the commencement of the statute. This is more so because of the fact that in Ext.P8 the 1st respondent had admitted that the assessment can be made only under Section 5(3) of the Act. 6. The next question to be considered is as to whether Ext.P8 order of assessment is made in compliance with the procedure contemplated under Section 5(3). Under Section 5(3), if any major repair or improvement is made on or after the appointed day to a building which is constructed before the said date, Building Tax shall be payable only on the additional plinth area of the building resulting from such repair or improvement. As conceded in the return filed by the petitioner [Ext.R1(a)], the plinth area increased by virtue of the repair/improvement, is only 54 M2. But it is 7 W.P.(C).No.33622 of 2010 not evident from the order of the assessment or from the statement filed in this writ petition as to whether the 1st respondent had made any verification for ascertaining the exact extent of the additional construction, if any made. At any rate, under the above mentioned circumstances, the petitioner will be liable only for payment of Building Tax with respect to the plinth area of the building resulting out of the repair or improvement. Hence, I am of the view that, Ext.P8 order through which Building Tax is imposed on the entire plinth area of the building, is unsustainable. Therefore, the matter need reconsideration at the hands of the 1st respondent and a fresh assessment need be finalised taking note of the above observations. 7. In the result, the writ petition is allowed and Ext.P8 order is hereby quashed. The matter is remanded to the 1st respondent for finalisation of the assessment afresh, taking note of the observations contained herein above, after affording a reasonable opportunity of hearing to the 8 W.P.(C).No.33622 of 2010 petitioner. The assessment as directed above shall be finalised at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 8. Needless to say that the amount of Rs.75,805/-, stated to have been remitted by the petitioner, shall be appropriated in accordance with the outcome of the fresh orders of assessment to be passed. C.K.ABDUL REHIM, Judge ami/