IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 8560 of 2002(R)
1. M.MOIDEENKUTTY, MANAGING PARTNER,
... Petitioner
Vs
1. ASSESSMENT OFFICER/ASST.LABOUR OFFICER
... Respondent
2. THE SECRETARY, KERALA BUILDING AND
3. THE SECRETARY, APARTMENT OWNERS
4. M/S.CORPORATE BUILDERS,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.K.M.SATHYANATHA MENON
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/05/2008
O R D E R
S.SIRI JAGAN, J.
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O.P. No.8560 of 2002
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Dated this the 26th day of May, 2008
J U D G M E N T
The petitioner claims that he has sold certain properties to
the 4th respondent, in which the 4th respondent constructed flats
and sold it to intending purchasers. According to the petitioner,
once he has parted with the title to the property, he cannot be
made liable for cess under the Building and Other Construction
Workers Welfare Cess Act, 1996, in respect of the flats
constructed thereon. The petitioner was served with Ext.P3 pre-
assessment notice to which the petitioner filed detailed
objections, Ext.P4. The grievance of the petitioner in this original
petition is that in spite of the same, Ext.P5 order has been
passed in a printed form without referring to any of the
contentions raised by the petitioner in Ext.P4 objections. The
petitioner, therefore, challenges Ext.P5 on the ground of violation
of principles of natural justice.
2. No counter affidavit has been filed. The learned
Government Pleader submits that the Corporation has reported
o.p.8560/02 2
that the entire building tax has been paid by the petitioner and,
the petitioner is the one liable to pay cess under the Act.
3. I have considered the parties at length.
4. I am of opinion that issue of pre-assessment notice is
not an empty formality. The same is issued to a party to enable
him to place his contentions against the proposed assessment
on record. When in reply to the pre-assessment notice, the party
files objections disclaiming liability to pay the same on specific
contentions, the assessing authority has a duty to consider each
and every contention of the party and enter a finding either
against or in favour of the party to whom pre-assessment notice
is issued. In this case, to Ext.P3 pre-assessment notice the
petitioner has filed Ext.P4 reply specifically contending that he
has sold the property to the 4th respondent in which the 4th
respondent had constructed building and, therefore, the
petitioner has no liability whatsoever to pay cess under the Act.
Ext.P5 order is in a printed form filling up blank spaces. The
same does not reveal that any of the contentions of the petitioner
has been dealt with and specific findings entered thereon, which
is the cardinal requirement of principles of natural justice.
o.p.8560/02 3
Therefore, I am satisfied that Ext.P5 is violative of principles of
natural justice. Accordingly, Ext.P5 is quashed. If any amount has
been paid pursuant to Ext.P5, the petitioner is entitled to
reimbursement of the same. However, it would be open to the
respondents to make fresh assessment after affording an
opportunity of being heard to the petitioner and entering specific
finding on each and every contention of the petitioner by a
speaking order.
The original petition is allowed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
o.p.8560/02 4
S.SIRI JAGAN, J.
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O.P. No.8560 of 2002-R
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J U D G M E N T
26th May, 2008