IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 17986 of 2008(N) -------------------------- PETITIONER: ----------------- THE ETTUMANOOR VYAPARABHAVAN TRUST ETTUMANOOR REPRESENTED BY ITS SECRETARY, M.P.JAYAKUMAR RESIDING AT MARADATHUKUNNEL HOUSE PALA. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS: --------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE TAHSILDAR,KOTTAYAM, IN THE CAPACITY AS THE ASSESSING AUTHORITY UNDER THE KERALA BUILDING TAX ACT 1975. GOVERNMENT PLEADER SRI. BEJOY CHANDRAN FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.17986 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2008 JUDGMENT Petitioner has approached this court challenging Ext.P9. Ext.P9 is a demand under the Building Tax Act. According to the learned counsel for the petitioner, petitioner is a charitable trust and they constructed a three storied building, which was completed during 2004. It is their case that the ground floor is used for commercial purpose and upstairs are used for charitable purpose. According to the petitioner, assessment was completed during 2005 and tax was levied only for 399.36 square meters. Ext.P3 is the demand notice dated 5.1.2006. Exts.P4 to P7 produced are copies of receipts evidencing payments. Thereafter petitioner was served with a notice and the petitioner has raised Ext.P8 objection. According to the petitioner, without taking any evidence Ext.P9 order has been passed calling upon the petitioner to remit tax of Rs.2,84, 400/- for a plinth area of 1976.75 square meters. Ext.P11 is produced as the registration certificate issued by the Income Tax authorities. Exts.P12 to P14 are copies of the returns filed before the Income tax authorities. Ext.P15 letter of the Ettumanoor Grama Panchayath is produced to show that the petitioner is doing charitable activities. Ext.P16 is the certificate WPC.17986/2008. 2 given by the Circle Inspector of Police, Ettumanoor stating that the petitioner is co-operating with the activities of the police in promoting public interest. 3. A statement is also filed by the respondents. According to the respondents the building is used for profit motives. It is stated in the statement inter alia that the petitioner has not raised any objection regarding the assessment nor filed application under Section 3(1)b of the Kerala Building Tax Act. 4. Reply affidavit is also filed by the petitioner. Petitioner relied on Ext.P8, which is stated to be the objection, in which it is stated that in case the authority has any doubt, the matter has to be referred under Section 3(2) of the Building Tax Act and Rules. The learned Government Pleader was directed to make available the files. Learned Government Pleader on perusal of the files submits that Ext.P8 is not seen received, but, it is seen that the petitioner has filed a statement before the assessing authority pointing out that charitable activities are being conducted in the building. In the light of this fact, the issue must be considered by the Government and it is only the Government, which can decide the question. WPC.17986/2008. 3 In such circumstances, the writ petition is disposed of as follows: The matter will be referred by the second respondent to the first respondent within one month from the date of receipt of a copy of this judgment. Thereafter the first respondent will proceed to decide the question in accordance with law after affording an opportunity of hearing to the petitioner also as to whether petitioner is entitled to exemption under Section 3 as claimed. Till such time, Exts.P9 and P10 will not be enforced. (K.M. JOSEPH, JUDGE) sb