IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31986 of 2006(G)
1. ROY M. MATHEW,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE TAHASILDAR,
4. THE VILLAGE OFFICER,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :24/09/2007
O R D E R
V.GIRI,J.
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W.P.(C) No. 31986 of 2006
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Dated this the 24th day of September, 2007
JUDGMENT
The petitioner constructed a seven storied building in Sy.No.738/2002
of Ernakulam Village. According to him, the building consists of residential
flats and commercial shops. 12 residential apartments were constructed by
him. The rest was on commercial basis ad-measuring 658.46 sq.metres. The
petitioner and the occupants of the residential apartments filed returns under
Section 7 of the Building Tax Act. The entire building was assessed as a
single unit and tax was computed at Rs.3,55,500/=. The order of assessment
was affirmed in appeal but in revision, the District Collector directed that
fresh assessment should be made treating the residential flats and the
commercial space separately. Ext.P2 is an order of assessment passed as
regards the apartment building and Ext.P3 is an order of fresh assessment
passed as regards the commercial area. The petitioner contends that the
assessment made in Ext.P3 and the consequential demand made were
satisfied.
2. Subsequently vide Ext.P5, a proposal was made for rectifying Ext.P3
on the ground that the entire building should have been treated as a unit.
Pursuant to Ext.P5, Ext.P6 order of assessment was passed by the Tahsildar
reassessing the building tax at Rs.3,55,500/-. Giving credit to the amount
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already remitted, a balance amount of Rs.2,11,740/= was demanded. This
was challenged in O.P.8850/1997 and in Ext.P7 judgment, Ext.P6 was set
aside by this Court. No liberty seems to have given by this Court to pass
fresh orders on the matter covered by Ext.P7 judgment.
3. Apparently, thereafter a fresh order of assessment was passed as
per Ext.P9 on the premise that an additional roof area of 109.21 sq.metres
was put up by the petitioner, invoking Section 5(4) of the Kerala Building
Tax Act. The entire building tax was reassessed and Ext.P10 is the demand
notice. Exts.P9 and P10 have been challenged in this writ petition.
4. A counter affidavit has been filed by the third respondent inter alia
contending that Ext.P9 is justified under Section 5(4) of the Act and in as
much as that the plinth area of the building was increased by a new
extension, the building tax has to be computed on the total plinth area of the
building including that of the new extended area and that credit shall be
given to the tax already levied and collected.
5. Learned counsel for the petitioner contends that no extension was
taken out by the petitioner. At any rate, learned counsel contends, that
Ext.P7 has become final and therefore there cannot be any reassessment of
the entire building in terms of Section 5(4) of the Act except on the basis
directed in Ext.P7 judgment. Learned counsel contends that this has not been
done in the case of Ext.P9 and evidently, fresh order of assessment passed
by the Tahsildar in exercise of the powers under Section 15 of the Act as per
Ext.P6 seems to be the basis of Ext.P9 order of assessment. Since Ext.P6 has
been set aside, obviously, the very basis of the fresh order now passed as
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per Ext.P9 is untenable, the learned counsel contends.
6. After having heard the learned counsel for the petitioner and the
learned Government Pleader, I am of the view that certain factual aspects,
obviously, have to be considered by the statutory authorities and therefore it
is appropriate that the petitioner files an appeal against Ext.P9. If there has
been an additional construction, as noted in Ext.P9, obviously, the authorities
are entitled to treat the same as exigible to tax under the Act. No final
expression of opinion is made in this case as the petitioner is being relegated
to an alternate remedy.
7. In the result, the writ petition is disposed of relegating the petitioner
to the alternate remedy under the Building Tax Act. If the petitioner files an
appeal against Ext.P9, within a period of one month from today, the same
shall be treated as filed as within time. In the peculiar facts of the case,
especially, taking note of Ext.P7 judgment, the petitioner may be permitted
to file the appeal without remitting any further amount. If the appeal is filed
in the manner, as aforementioned, it shall be considered and an appropriate
decision may be taken in this regard, after hearing the parties.
V.GIRI, JUDGE
css/
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