IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 25114 of 2010(L) -------------------------- PETITIONER: --------------- M/S.ORISON TRADING AND CONTRACTING AGENCY SERVICES A PARTNERSHIP FIRM, REP. BY ITS PARTNER MRS AMINU HAMEED, AGED 60, W/O.K.P.ABDUL HAMEED, KESAVATHUPARAMBIL HOUSE, KOCHANNUR,CHAVAKKAD,THRISSUR,THROUGH THE POWER OF ATTORNEY HOLDER P.K.CHANDRAN, AGED 60, S/O. KRISHNAN NAMBOODIRI, "HARISREE" KOLAZHI,VIYYUR,TRICHUR DT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVT.TAX DEPARTMENT,GOVT. SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. THE REVENUE DIVISIONAL OFFICER, THRISSUR 680001. 3. THE TAHSILDAR,TALUK OFFICE, WADAKKANCHERY,THRISSUR 680001. 4. THE VILLAGE OFFICER,KUNNAMKULAM VILLAGE OFFICE,THRISSUR-680001. GOVT.PLEADER, SRI.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ------------------------------------- W.P.(C) No.25114 OF 2010 ------------------------------------- Dated this the 11th day of August, 2010 J U D G M E N T ~~~~~~~~~~~ The petitioner is stated as aggrieved by the course pursued by the assessing authority with regard to the fixation of liability under Section 5 of the Kerala Building Tax Act, inspite of the clear mandate given by the appellate authority as per Ext.P6. 2. The case of the petitioner is that the building was originally constructed by the petitioner much previous to 10.2.1992, which is the 'appointed date' and the petitioner effected some additional constructions thereafter. This being the position, the tax liability, if at all any can only be as provided under Section 5(3), that is, in respect of the additional portion alone and not taking the entire building as a whole as provided under Section 5(4). W.P.(C) No.25114/2010 2 3. In fact, the assessment finalised by the 3rd respondent was challenged by the petitioner by filing statutory appeal and after considering the merits involved, Ext.P4 assessment order and Ext.P5 demand notice were set aside by the appellate authority (2nd respondent) as per Ext.P6 order and the matter was remanded to the assessing authority to complete the assessment as provided under Section 5(3) of the Act. Pursuant to the remand, the matter was considered by the assessing authority, who passed Ext.P7 order dated 17.6.2010, simply stating that on perusing the relevant records and after hearing the petitioner and also on conducting a site inspection, absolutely no change was warranted with regard to the order already passed. Accordingly, the earlier order was simply sustained casting the liability upon the petitioner as it was originally fixed, which forms the subject matter of challenge in this Writ Petition. 4. Heard the learned Government Pleader as well. W.P.(C) No.25114/2010 3 5. Going by the materials on record, there need not be any second thought for this Court to arrive at s finding that the course pursued by the 3rd respondent/assessing authority in passing Ext.P7 order is not correct or sustainable. A specific direction was given by the appellate authority in Ext.P6, as to the manner of assessment, stipulating that it shall be done as provided under Section 5(3) of the Act. Absolutely, no reference has been made by the assessing authority to the above provision and no finding has been arrived at, holding that the averment raised by the petitioner that the original construction was effected prior to the 'appointed date' is wrong or that the entire construction has been effected after the 'appointed date', so as to sustain the assessment under Section (4). 6. In the above circumstances, there is no other alternative, but to set aside Ext.P7. Accordingly, Ext.P7 is set aside and the 3rd respondent is directed to finalise the assessment as specifically ordered by the appellate authority vide Ext.P6 passing a 'speaking order' with reference to the W.P.(C) No.25114/2010 4 relevant provisions of law. The 3rd respondent is also at liberty to call for the relevant records from the concerned authorities, including the local authority, if so necessitated. It is for the petitioner to furnish all the requisite materials to substantiate his contentions before the 3rd respondent. The proceedings as above shall be finalised, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. (P.R.RAMACHANDRA MENON, JUDGE) ps