IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 22541 of 2009(K) -------------------------- PETITIONER: ------------------ GRACY GEORGE, AGED 74, W/O.LATE K.GEORGE VARGHESE, KURISUMOOTIL HOUSE, KATTOOKKARA, THIRUVALLA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.JOSEPH GEORGE RESPONDENTS: --------------------- 1. THE TAHSILDAR, THIRUVALLA TALUK, THIRUVALLA, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. A.J.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22541 of 2009(K) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF AGREEMENT DATED 9.10.2000 EXECUTED BY THE PETITIONER ALONG WITH HER HUSBAND FOR CONSTRUCTION. P2 : COPY OF THE NOTICE NO.BT-207/09 DATED 9.2.2009 OF THE 1ST RESPONDENT. P3 : COPY OF THE REPLY DATED 9.2.2009 OF THE PETITIONER. P4 : COPY OF LIST OF OWNERS OF CITY CENTRE. P5 : COPY OF AGREEMENT DATED 5.8.2004 EXECUTED ON BEHALF OF THE PETITIONER AND OS. CHANDY AND ANOTHER IN RESPECT OF CONSTRUCTION OF SHOP ROOM. P6 : COPY OF ASSESSMENT ORDER NO.BT-207/09 DATED 30.4.2009 P7 : COPY OF LETTER DATED 25.5.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P8 : COPY OF LETTER NO.BT-207/2009 DATED 1.6.2009. P9 : COPY OF LETTER DATED 30.7.2009. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- C.K.ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.22541 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of September, 2009 J U D G M E N T 1. The challenge in this writ petition against Ext.P6 order of assessment issued under the provisions of the Kerala Building Tax Act, 1975 (for short the Act). The assessment against the petitioner is with respect to a commercial building imposed with tax liability calculating the plinth area as 7092.35 M2. Contention of the petitioner is that she is only the owner of the land, and the construction is conducted by a firm named M/s. C.V.P. Realtors Pvt. Ltd; by virtue of Ext.P1 agreement executed between the petitioner and the said company. In terms of Ext.P1 the ownership with respect to ½ portion of the entire building will be vested on the above said company. It is further case of the petitioner that after commencement of construction, the petitioner as well as the above said company had already entered into agreements for sale of various shop rooms to different prospective purchasers and W.P.(C) No.22541 of 2009 2 the investment for continued construction is met by each of them. Hence, the claim is that the entire building is not liable to be assess as a single unit. The petitioner has got yet another contention that the construction of the building has not been completed and the local authority has not issued any occupancy certificate. Therefore it is contended that the taxable event under the provisions Act has not yet occurred and the assessment now made is not sustainable. It is submitted that the building in question will fall within the category mentioned in Explanation 2 to section 2(e) of the Act and each shop room need be assess separately. 2. It is for the petitioner to put forth all the above contentions before the assessing authority. It is submitted by the petitioner that on receipt of Ext.P2 notice requiring for production of relevant records, the petitioner had submitted Ext.P3 representation and all the relevant records pertaining to ownership of the building as well as the agreements pertaining to purchase of the respective W.P.(C) No.22541 of 2009 3 shop rooms were produced before the assessing authority. But the contention of the petitioner as well as the documents produced were neither adverted to nor considered while issuing Ext.P6 order of assessment, is the argument. 3. It is not evident from Ext.P6 order, which is issued in a printed form, as to whether the petitioner had submitted any documents in support of his contention. Further, from Ext.P6 it is not discernible as to whether the assessing authority has adverted to any of the contentions raised by the petitioner or as to whether he had considered any materials produced before him. 4. It is settled law that the assessing authority making an assessment shall apply his mind and pass speaking orders with reasonings mentioned thereon, after adverting to the objections if any raised by the assessee and after considering the materials if any produced by him. Ext.P6 is a totally non-speaking order issued without W.P.(C) No.22541 of 2009 4 application of mind. Such an order is unsustainable as opposed to settled legal precedents and principles of natural justice. Hence Ext.P6 is liable to be quashed. 5. In the above circumstances Ext.P6 assessment order is hereby quashed. The first respondent is directed to consider the matter afresh and to pass a speaking order adverting to contentions of the petitioner and also considering the materials produced by him in support of such contentions, if necessary after affording a further opportunity of personal hearing to the petitioner. Fresh orders in this regard may be issued as early as possible at any rate within a period of six weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this Judgment before the first respondent. C.K.ABDUL REHIM, JUDGE. app/-