IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 28136 of 2010(N) -------------------------- PETITIONER(S): --------------- BINOD VISWAMBHARAN , S/O.LATE P.K.VISWAMBHARAN, OORAMPALLIL, KESAVAN NAGAR, MUNDAKAL WEST, KOLLAM. BY ADV. SRI.M.SREEKUMAR SRI.A.ABDUL KHARIM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. TAHSILDAR KOLLAM TALUK, KOLLAM PIN 691 001 BY GOVT. PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.28136 of 2010-N ---------------------------- Dated this the 20th day of September, 2010. J U D G M E N T The father of the petitioner late Sri.P.K.Viswambharan, who was the owner of 33.7 cents of property in Mundakkal Village, Kollam Taluk, obtained permit for construction of a multi-storied residential apartment complex in the property consisting 24 units. According to the petitioner, construction of the building was entrusted with a builder M/s.ACE Foundation and Structures and the builder had entered into agreements with 22 intending purchasers, on behalf of whom the flats were constructed. Two flats were retained by the predecessor of the petitioner. 2. Dispute in this writ petition pertains to assessment of Building Tax, completed as per Ext.P41 order of assessment, and Ext.P41(a) demand notice issued. Ext.P42 is the assessment with respect to luxury tax under Section 5A. Contention of the petitioner is that the cost of construction of individual units was met by each of the intending purchasers, on the basis of agreements entered by each of them with the builder. It is also contended that the W.P(C) No.28136 of 2010-N 2 undivided shares in the land has already been transferred to most of the purchasers. With respect to the remaining persons also there is an agreement for transfer of the undivided share. Since the cost of construction was met by the owners of each residential units, the entire building could not be considered as a single unit and assessments now completed against the petitioner is unsustainable, is the contention. According to the petitioner each residential apartments in the building in question need not be assessed separately treating the same is falling within Explanation 2 of Section 2(e) of the Kerala Building Tax Act 1975. 3. It is noticed that Ext.P1 order of assessment is issued only in a printed form, which does not contain any particulars as to whether any opportunity was afforded to the petitioner before finalising the assessment and whether the petitioner had submitted any objection or furnished any documents of title. Learned Government Pleader on the basis of instructions submitted that the petitioner had submitted name and address of the owners of individual apartments, before finalising the assessment. But it is evident that the second respondent has not issued any notice to W.P(C) No.28136 of 2010-N 3 such persons nor they were heard regarding exigibility for separate assessment, under Section 2(e) of the Act. 4. It is noticed that this Court in the judgment in M/s.Bavasons Constructions Pvt.Ltd. Vs. State of Kerala (2007(3) KLT 101) had clearly prescribed the para meters for allowing benefit of Explanation 2 to Section 2(e) and also prescribed criteria in which separate assessment can be permitted. Going by dictum laid in the above said decision, the impugned order of assessment is not sustainable. 5. Under the above circumstances, Exts.P41, P41(a) and P42 are hereby quashed. The matter is remanded back to the second respondent for finalising the assessment afresh. The second respondent will issue notice to all the individual owners holding ownership of each individual apartments. The exigibility for separate assessment under Explanation 2 of Section 2(e) shall be decided after affording a reasonable opportunity of hearing to all of them and after considering documents which may be produced by them in order to prove that the cost of construction was met by each of them. W.P(C) No.28136 of 2010-N 4 6. A fresh assessment in this regard shall be finalised at the earliest, at any rate within three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. S d/- C.K.ABDUL REHIM, JUDGE //True Copy// P.A to Judge ab