IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 OP.No.19515 of 2000(W) ------------------------------ PETITIONER: ---------------- ABDUL SAMAD, DIRECTOR, MANAPPURAM HOTELS (PVT) LTD. KURUPPAM ROAD, THRISSUR. BY ADV. SRI.T.KRISHNANUNNI SRI.K.K.MOHAMED RAVUF RESPONDENTS: ------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, TAXES (H) DEPARTMENT, TRIVANDRUM. 3. THE TAHSILDAR, THRISSUR. GOVERNMENT PLEADER (TAX) SRI. K.P. PRADEEP. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No.19515/2000 Order on C.M.P.No.32615/2000 in OP.No.19515/2000 Dismissed. 16.12.2008 Sd/- S. SIRI JAGAN, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ASSESSMENT ORDER DT.28.11.94 ISSUED FROM THE TAHSILDAR, THRISSUR. EXT. P2 : COPY OF NOTICE DT. 8.1.98 ISSUED FROM -DO-. EXT. P3 : COPY OF NOTICE OF DEMAND DT. 13.2.98 OF THE BUILDING TAX ASSESSING AUTHORITY. EXT. P4 : COPY OF JUDGMENT DT. 17.3.1999 IN W.A.No.724/99 OF THIS HON'BLE COURT. EXT. P5 : COPY OF APPEAL DT. 29.3.99 FILED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, TRICHUR. EXT. P6 : COPY OF PROCEEDINGS No.G1-4213/99/K.DIS. DT. 24.3.2000 OF the REVENUE DIVISIONAL OFFICER, THRISSUR. EXT. P7 : COPY OF REVISION PETITION DT. 13.4.2000 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, THRISSUR. EXT. P8 : COPY OF PROCEEDINGS No.B4-23474/2000 DT. 22.5.2000 OF THE DISTRICT COLLECTOR, THRISSUR. 3RD RESPONDENT'S EXHIBITS: EXT. R3(a) : COPY OF THE LETTER DT. 5.1.1994. EXT. R3(b) : COPY OF THE REPORT DT. 20.9.1994. EXT. R3(c) : COPY OF THE REPORT DT. 18.9.1993. EXT. R3(d) : COPY OF THE LETTER DT. 12.10.1998. // True Copy // P.A. to Judge. smp S. SIRI JAGAN, J. ------------------------------------ O.P.No. 19515 2000 ---------------------------------------- Dated this the 16th day of December, 2008 JUDGMENT The petitioner constructed a building in 1993. By Ext.P1 assessment order dated, 28.11.1994, the building was assessed to building tax under the Kerala Building Tax Act, 1975, for a total plinth area of 2615.40 square metres, for an amount of Rs.2,96,400/-. The petitioner paid the same. More than three years later, the petitioner was served with Ext.P2 notice dated 8.1.1998 under Sections 9(2)/9(4) of the Kerala Building Tax Act directing the petitioner as follows: “With reference to the return filed by you under Section 7/8 of the Kerala Building Tax Act 1975 you are hereby required to be present at Taluk Office, Thrissur at 11AM on 16.1.98 produce of cause to be produced on 16.1.98 the return and approved plan following records/documents before me for the purpose of making the assessment failing which the assessment will be made to the best of my judgment”. Pursuant thereto, the petitioner has been served with Ext.P3 notice of demand dated 13.2.1998 under Rule 9(10) of the O.P.No.19515/2000 2 Building Tax (Plinth Area) Rules, assessing the very same building for a total plinth area of 2819.84 square metres for an amount of Rs.4,78,800/-. After deducting the amount of Rs.2,96,200/- be paid as per Ext.P1, the petitioner was directed to pay the balance amount of Rs.1,82,400/-. The petitioner challenged the same by filing a writ petition and a writ appeal in which the petitioner was relegated to the remedy by way of appeal as provided under the Kerala Building Tax Act itself. The petitioner filed Ext.P5 appeal before the Revenue Divisional Officer which was dismissed by Ext.P6 order. The petitioner's revision petition, Ext.P7 before the District Collector also met with the same fate. The petitioner is challenging Exts.P3, P6 and P8 orders in this original petition. According to the petitioner, after having assessed the building tax by Ext.P1 on 28.11.1994, for the same building another assessment could not have been made, validly, except under Section 15, for which a limitation period is prescribed and therefore Ext.P3 order, passed beyond the said period of limitation, is patently unsustainable. Consequently the appellate and revisional orders are also unsustainable is the contention raised. O.P.No.19515/2000 3 2. A counter affidavit has been filed by the 3rd respondent supporting the impugned orders. According to him, subsequent to Ext.P1 assessment, the petitioner made an additional construction making the building liable to be re- assessed under Section 5(4) of the Act. According to him, originally, the plinth area was only 2615.40 square metres as a result of which the building became liable to be re-assessed as provided under Section 5(4). The learned Government Pleader also supports the said action on the basis of the decision of this Court in Simon V. Tahsildar [2008(3) KLT 826]. 3. In answer to the contention raised by the 3rd respondent, the petitioner would contend that there was no additional construction as alleged by the 3rd respondent. He points out that either in Ext.P2 notice or in Ext.P3 demand notice is there any allegation that the petitioner has made additional construction. The learned counsel goes on to point out that in Exts.P6 and P8 orders also there is no categoric finding that the petitioner has made additional construction, but the finding is only that there is a possibility of having made additional construction in view of the difference in area. O.P.No.19515/2000 4 Without specifically putting the petitioner on notice regarding the alleged additional construction, with an opportunity to controvert the same, no proceedings under Section 5(4) could have been initiated is the contention raised. He further points out that there is nothing either in Ext.P2 or in the assessment orders applicable to show that the proceedings were initiated under Section 5(4). It is pointed out that in Ext.P2 the Sections quoted are Sections 9(2)/9(4) of the Kerala Building Tax Act. Therefore, the contention of the petitioner is that this was only a rectification of the original assessment and only in order to escape from limitation, the allegation of additional construction has been brought in to make it sustainable under Section 5(4), that too only in the appellate and revisional orders and not in the original order 4. I have considered the rival contentions in detail. 5. Although the learned Government Pleader would contend that the petitioner never filed any return till Ext.P2 notice was issued, Ext.P1 assessment order does not score off the portions in the printed notice to the effect that the petitioner has failed to make a return. Whatever that be, it remains a fact that the building has been assessed to building O.P.No.19515/2000 5 tax under the Kerala Building Tax Act on 28.11.1994 for a total plinth area of 2615.40 square metres. As pointed out by the learned counsel for the petitioner, Ext.P2 notice is issued under Section 9(2)/9(4) of the Act. In fact it specifically refers to a return filed by the petitioner. Ext.P3 is only a notice of demand. According to the petitioner, the assessment order was not served on him. The file relating to the subject relied on by the learned Government Pleader, contains an assessment order, which is exactly identical to Ext.P1 except for the plinth area and the amount. That also does not mention anything about any additional construction whatsoever. As such, the pre-assessment notice or the assessment order do not disclose that the assessment was on the basis of additional construction or that the same is under Section 5(4). It is in Ext.P6 appellate order, for the first time Section 5(4) is mentioned. It also says only that as the plinth area calculated after inspection by Tahsildar is higher the same indicates the possibility of additional construction. It does not categorically enter a finding to the effect that the petitioner has in fact made additional construction. It does not also say that the assessment order was under Section 5(4). But O.P.No.19515/2000 6 proceeds as if it is admitted that it is under Section 5(4). Again Ext.P8 order also there is no specific finding that there is any additional construction. What is stated therein is that as there is additional area for assessment presumably due to additional construction, the assessment under Section 5(4) of the Act is well in order. Therefore, in none of the orders there is a categoric finding to the effect that the petitioner has made additional construction justifying initiation of action under Section 5(4). 6. Further the documents produced along with the counter affidavit itself give an indication to the contrary. Ext.R3(c) (1), produced by the respondents themselves, is the occupancy certificate issued by the Town Planning Officer, Trichur Municipality dated 18.9.1993, in which the plinth area of the building is mentioned as follows: “Basement Floor - 373.70M 2 G F - 393.70M 2 F F - 384 M 2 S F - 386 M 2 T F - 386 M 2 IVth F - 386 M 2 Vth F - 386 M 2.” O.P.No.19515/2000 7 Ext.R3(c)(2) is the report of the Revenue Inspector dated, nil, which is stated to be the basis for Ext.P2 notice, gives the plinth area as follows: “Plinth Area Basement Floor - 373.70 M 2 G.F - 393.70M 2 F.F. - 386.00M 2 S.F. - 386.00M 2 III F(Third) - 386.00M 2 IV Floor - 386.00M 2. V Floor - 386.00M 2. VI Floor-water tank & Lift Room - 122.44M 2. ------------- 2817.84M2 -----------------” Comparing Ext.R3(c)(1) and R3(c) (2), as on 18.9.1993 there is actually no difference in area of second floor, third floor, fourth floor and fifth floor. Of Course, there is a slight difference of two square metres in the first floor. The allegation is that originally at the time of Ext.P1 assessment, the area of the first floor, second floor, third floor, fourth floor and 5th floor was only 366. Ext.P1 is dated 28.11.1994. That is after Ext.R3(c)(1). Therefore, in respect of those floors, I am unable to find that there is any evidence of additional construction. If at all, there was only a mistake in measuring O.P.No.19515/2000 8 the area in question or consciously the officer conducting the measurement had excluded certain portions from calculation. 7. That leaves the sixth floor. According to the learned Government Pleader, the petitioner has subsequently constructed a sixth floor with a water tank and a lift room. The learned Government Pleader submits that the water tank and the lift room are shown as the additional construction. I am unable to subscribe to that contention also. The building in question is a hotel. No person would construct a hotel without a water tank. No hotel can survive without a water tank even for a day. Further, when the Kerala Building Rules makes lifts in multi-storied buildings mandatory, I am unable to countenance the contention of the Government Pleader that the lift room was also constructed subsequently. Therefore, the only possible conclusion is that either the same were excluded for the purpose of assessment as per Ext.P1 or the concerned Officer, who conducted the measurement had omitted to measure the same. Whatever that be, it cannot be accepted for a moment that there is any additional construction warranting invoking of Section 5(4). If it was only a mistake then the same could have been corrected only O.P.No.19515/2000 9 by resort to Section 15 within the limitation period prescribed therein, which has admittedly not been done here. When there is no additional construction, resort to Section 5(4) of the Act is also misplaced. In the above circumstances, I am satisfied that the impugned orders are unsustainable. Accordingly the same are quashed. Amounts, if any paid pursuant to the impugned orders shall be refunded to the petitioner within a period of one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.19515/2000 10