IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 30707 of 2010(K) -------------------------- PETITIONER(S): --------------- R.G.RAMASUBRAMANYAN, S/O.R.S.GOPALAKRISHNAN, AGED 37, PARTNER JAYARAJ ENGINEERING CORPORATION, MARKET ROAD, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, TRIVANDRUM-1. 2. THE REVENUE DIVISIONAL OFFICER, PALAKKAD, PIN-678001. 3. THE TAHSILDAR, PALAKKAD, PIN-678001. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 30707 OF 2010 ------------------------------------- Dated this the 11th day of October, 2010 JUDGMENT Petitioner is the builder of a residential apartment complex consisting of 16 apartments. According to him, even prior to starting construction of the complex, 14 agreements were entered with 14 intending purchasers who came forward for buying apartments in the complex. Ext.P1 is one of such agreements, wherein it is revealed that the construction was undertaken by the builder on behalf of the purchaser and the undivided share in the land was transferred into his name. It is the specific case of the petitioner that the cost of construction of the apartments were met such individual owners jointly. 2. The petitioner had produced Ext.P2 series documents which will indicate that each such persons have paid tax due under the KVAT Act with respect to the works contract undertaken. 3. It is stated that the 3rd respondent had 2 WP(C) No. 30707/2010 completed assessment under the Kerala Building Tax Act, 1975 against the petitioner, treating the entire apartment complex as a single unit, to the tune of Rs.2,93,400/-. Aggrieved by the assessment the petitioner filed an appeal before the second respondent. Ext.P5 is the order issued by the appellate authority. The appeal was rejected finding that the building in question is not liable to be assessed under explanation 2 to Section 2 (e) of the Kerala Building Tax Act. It is observed by the appellate authority that, it is revealed from the records that the electricity bills and municipality taxes are in the name of the petitioner and separate bills are not available in the name of individual flat owners. 4. The question raised by the petitioner is with respect to claim for separate assessment on individual owners of each apartments. Crucial aspect to be considered is as to whether the petitioner had constructed the entire building by expending his own funds or as to 3 WP(C) No. 30707/2010 whether the individual purchasers have met the cost of construction jointly. The criteria in allowing separate assessment in such cases, on the basis of explanation 2 to sub section (e) of Section 2 of the Kerala Building Tax Act, has been considered elaborately by this Court in the decision in M/s. Bava Sons Constructions Pvt. Ltd. Vs. Tahsildar [2007 (3) KLT 101]. 5. It is noticed that the assessment order Ext.P3 does not reflect any application of mind by the assessing authority on the question regarding claim for separate assessment. The said order is issued on a printed format and it is not discernible as to whether any notice was issued to the petitioner before finalising the assessment or as to whether the petitioner had submitted any objections against the assessment being completed against him. Going by Ext.P5 it is evident that the appellate authority has also not considered the matter in its real perspective. The reason for rejecting the claim for separate assessment enumerated 4 WP(C) No. 30707/2010 under Ext.P5 is not the real criteria to be looked into. As stated above, the prime consideration ought to have been as to whether the cost of construction was met by owners of individual apartments jointly. 6. Under the above circumstances, I am of the view that the matter requires reconsideration at the hands of the assessing authority. Ext.P3 order of assessment as well as Ext.P5 appellate order are hereby quashed. The 3rd respondent Tahsildar is directed to finalise the assessment afresh, after issuing notice to the petitioner as well as to all the owners of the individual apartments, and after affording them a reasonable opportunity of hearing. 7. The question whether the assessment need be completed treating individual apartments as separate units shall be decided on the basis of the observations made above and having regard to the parameters fixed in the decision of this Court cited above. Fresh assessment in this regard shall be completed as early as possible, at any rate 5 WP(C) No. 30707/2010 within a period of three months from the date of receipt of a copy of this judgment. Needless to say that amount if any remitted by the petitioner shall be appropriated in accordance with outcome of the fresh assessment to be completed. C.K. ABDUL REHIM JUDGE dnc