IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 10464 of 2011(G) -------------------------- PETITIONER(S): --------------- THE COCHIN CUSTOMS HOUSE AGENTS ASSOCIATION, INDIRA GANDHI ROAD, WILLINGDON ISLAND, COCHIN-682009, REPRESENTED BY ITS HONORARY SECRETARY, P.K.NAMBIAR. BY ADV. SRI.SUNIL JACOB JOSE SMT.JISHAMOL CLEETUS RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682030. 2. TAHSILDAR, TALUK OFFICE, FORT KOCHI, KOCHI-682003. BY GOVT. PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.10464 of 2011-G ---------------------------------------- Dated this the 5th day of April, 2011. J U D G M E N T The petitioner is an Association of Licensed Customs House Agents at Cochin Port. The office building of the Association was constructed in the year 1960, in a land allotted by the Cochin Port Trust, having an extent of 10.08 cents. The petitioner is aggrieved by Ext.P6 order of assessment and Ext.P7 demand notice, issued under the provisions of the Kerala Building Tax Act 1975. 2. It is evident that the building in question was assessed reckoning plinth area of the building as 696.36 Sq.M and imposing building tax to the tune of Rs.1,26,000/-. It is conceded that, before finalising the assessment the petitioner was issued with a notice as contemplated under Section 9(2) of the Act, as evidenced from Ext.P1. According to the petitioner, on receipt of Ext.P1, the Secretary of the petitioner Association appeared before the 2nd respondent and raised objection to the effect that, the building in W.P(C) No.10464 of 2011-G 2 question is not liable to be assessed, since the construction was completed in the year 1960. According to the petitioner the 2nd respondent insisted on production of documents to prove the fact that the building in question was constructed earlier. 3. It is the case of the petitioner that, eventhough he made an application before the local authority, the Cochin Corporation, to get the details regarding the Building Permit granted at the time of construction, Ext.P4 reply was given to the effect that, such documents were not available and the same could not be traced out because the building application number was not furnished. 4. Eventhough the petitioner concede that, the front face of the building was fitted with 'Composite Panels' and 'Aluminium Claddings' such works will not come within the purview of any 'major repair' or 'improvements'; a result of which the plinth area of the building was increased in any manner. Such works undertaken will not come within the purview of 'major repair' or 'improvement' as defined under W.P(C) No.10464 of 2011-G 3 Section 2(h) of the Kerala Building Tax Act 1975, is the contention. Therefore, since the construction of the building remained completed from the year 1960 onwards, no building tax is leviable and the assessment now made is totally unsustainable, is the contention. It is further contended that the 2nd respondent has no jurisdiction to make any such assessment. 5. On a perusal of Ext.P6 order of assessment it is evident that the same was issued in a printed form without describing any details. It is not discernible from Ext.P6 as to whether the petitioner had received any notice issued under Section 9(2) and as to whether they have filed any objections. What was the contention raised during the enquiry and as to whether the 2nd respondent had considered such contentions on merits, is not at all discernible from Ext.P6. It is settled law by this time that, the assessing authority is expected to issue speaking orders mentioning the reasons for making any assessment. 6. In the case at hand it is evident that the dispute is W.P(C) No.10464 of 2011-G 4 basically regarding jurisdiction of the 2nd respondent for making any assessment. Contention is that there was no 'repair' or 'improvement' effected to the building which will result in increase of the plinth area. The dispute regarding the date of completion of construction can be ascertained by getting proper evidence regarding assessment of property tax by the local authority, the Cochin Corporation. Unless the 2nd respondent has got a case that by virtue of any 'major repair' or 'improvement' made to the building in question, the plinth area has been increased, no assessment can be sustained, provided there is proof to the effect that the building in question was completed construction prior to the year 1975. Since no consideration of any such grounds is reflected in Ext.P6, I am of the considered opinion that the impugned assessment is totally unsustainable in the light of the settled precedents and the matter requires reconsideration. 7. Under the above circumstances, the writ petition is disposed of quashing Exts.P6 and P7. The 2nd respondent W.P(C) No.10464 of 2011-G 5 is directed to finalise the matter afresh, after affording a reasonable opportunity to the petitioner to object the proposal for assessment, and also after affording a reasonable opportunity of personal hearing. Needless to say that the petitioner will be at liberty to file objections and to produce documents if any in support of their contentions. 8. A decision in this regard shall be taken by the 2nd respondent 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 ab