IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 OP.No. 34864 of 2001(A) ---------------------------------- PETITIONER: -------------------- SURABHI APARATMENTS, KUNNATHUMANA LANE, REP.BY THE MANAGING DIRECTOR, T.V.GOPALAKRISHNAN, ARCHANA, WOMEN'S CLUB ROAD, THRISSUR. BY ADV. SRI.P.SANTHALINGAM SRI.S.SHARAN RESPONDENTS: ---------------------- 1. TAHSILDAR, ASSESSING AUTHORITY, TALUK OFFICE, THRISSUR 2. STATE OF KERALA, REP.BY CHIEF SECRETARY TO GOVERNMENT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.V.TEK CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.34864/2001 ORDER ON CMP. 56964/2002 IN OP. NO.34864/2001 DISMISSED 07.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE INTIMATION SENT TO ONE OF THE OWNER. EXT.P2:- COPY OF THE INTIMATION SENT BY THE PETITIONER FIRM TO THE SIT RESPONDENT DT. 10.1.2000. EXT.P3:- COPY OF THE RETURNS FILED BY ALL OF THE 17 OWNERS. EXT.P4:- COPY OF THE NOTICE DT. 24.3.2000 SENT BY THE IST RESPONDENT TO THE PETITIONER. EXT.P5:- COPY OF THE NOTICE ISSUED TO THE PETITIONER TO APPEAL FOR A HEARING BEFORE THE IST RESPONDENT. EXT.P6:- COPY OF THE ORDER OF THE ASSESSMENT SERVED ON THE PETITIONER ON 1.10.01. EXT.P7:- COPY OF THE DEMAND NOTICE REF. NO.B1 543/2000/02. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ======================= OP.No.34864 of 2001-A. ======================= Dated this the 7th day of March, 2008. J U D G M E N T The challenge is against Ext.P6 assessment order and the subsequent demand notice Ext.P7 issued under the Kerala Building Tax Act. The matter herein concerns the assessment of tax in respect of Surabhi Apartment. Altogether 18 flats were included in the said construction and the undivided share in respect of each one of them was sold to 18 individuals who became the owners of the flats on payment of the last instalment on 9.6.1998. As evidence, the petitioner has produced Ext.P1 intimation. It is averred that all the 18 individual owners have obtained absolute right in the 18 flats. It is also the case of the petitioner that there is a specific agreement to the effect that they are liable to pay the tax after the construction of the flats are completed. Ext.P2 is said to be the statement filed by the petitioner OP.No.34864 of 2001-A. -: 2 :- before the Tahsildar showing the respective names of owners of 18 flats. The petitioner has produced Ext.P3 series which are copies of the returns separately filed before the Tahsildar. 2. By Ext.P5 notice the petitioner was asked to appear for a hearing before the Tahsildar on 13.8.2001. It is the case of the petitioner that on that day the first respondent Tahsildar informed the petitioner that the relevant file is missing and that a further hearing will be held only after tracing the same. Exts.P6 and P7 are the assessment order and the demand notices served on him on 1.10.2001. 3. A reading of Ext.P6 shows that the Tahsildar proceeded to reject the case of the petitioner on the ground that the petitioner has not produced valid documents, but the statement of one Sri.Mahadevan who had appeared before the Tahsildar was recorded. His statement was that the present occupants are the owners of the building. Therefore the Tahsildar was bound to enquire into the said fact and the individual owners ought to have been issued notices also. OP.No.34864 of 2001-A. -: 3 :- 4. In the light of the above, Exts.P6 and P7 are quashed. The first respondent is directed to reconsider the matter afresh. As far as the issue to be decided is concerned, Section 2(e), Explanation 2 of the Kerala Building Tax Act are relevant. The procedure to be adopted in such a case and the principles to be followed therein have been laid down in various decisions of this Court particularly in Bavasons Constructions (P) Ltd. v. State of Kerala (2007(3) KLT 101). The dictum laid down in para.9 is apposite and the same is extracted below: “The assessing authorities shall consider the claim relating to each flat and render a separate speaking decision with reference to each flat. A common order can be passed for each residential complex. But, in that order, there should be separate finding regarding each flat/apartment. In case any flat is remaining unallotted, the assessment in respect of such flat shall be made, treating the builder as the owner. In case, in relation to a particular flat, sufficient materials are not produced to support the claim for the benefit of Explanation 2 to S.2(e), then also, the assessment shall be made, treating the builder as the owner of the apartment. While making separate assessments of the flats, the common area shall also be divided on pro rata basis, so that the entire built up area of the building is assessed to building tax. The petitioners shall also furnish the correct addresses, as far as possible, of the allottees of the flats, to the assessing authorities. The assessing OP.No.34864 of 2001-A. -: 4 :- authorities shall afford an opportunity of being heard to the petitioners-builders and the individual flat owners and pass final orders in the matter, as far as possible, before 30/07/2007. They shall, as stated earlier, deal with the assessment relating to every flat/apartment separately, with reference to the documents produced.” 4. Therefore, the first respondent is directed to issue notice to all the 18 owners of the respective flats; allow them an opportunity to submit their objections and to produce evidence. The petitioner also will be allowed sufficient opportunity to adduce evidence in the matter. Orders shall be passed on its merits accordingly within a period of four months from the date of receipt of a copy of this Judgment. The Original Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-