IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 281 of 2007()
1. DIX JACOB, S/O JACOB VAZHAPPILLY,
... Petitioner
Vs
1. THE GOVERNMENT OF KERALA, REP. BY
... Respondent
2. THE TAHSILDAR, ASSESSING AUTHORITY,
3. THE VILLAGE OFFICER, CHEMBUKAVU VILLAGE
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
R.S.A. NO.281 OF 2007
===========================
Dated this the 22nd day of March, 2007
JUDGMENT
Plaintiff in O.S.No.1514/03 on the file of
Munsiff Court, Thrissur is the appellant.
Defendants are respondents. The appellant filed
the suit seeking a decree for a declaration that
defendants are not entitled to proceed against the
movable properties in the building TC 19-540(V/A)
and restraining defendants from realising the
building tax from the appellant or his properties.
The case of the appellant was that the building
against which assessment proceedings were initiated
under Kerala Building Tax Act, does not belong to
the appellant but to his father and when Ext.A1
notice was served directing him to produce approved
plan and returns, he sent Ext.A2 reply stating that
he is not the owner of the building and his father
is the owner and therefore the proceedings has to
be initiated against his father and he is not in a
R.S.A.No.281/07 2
position to produce the approved plan and return
and still Ext.A3 order was passed asssessing a
building tax of Rs.51,600/- as against the
appellant. Appellant contended that as he is not
the owner or the assessee, he is not liable to pay
the building tax and respondents are not entitled
to proceed against him or his movable or immovable
properties for realisation of the building tax.
Respondents filed a written statement contending
that the suit is barred under section 27 of Kerala
Building Tax Act and appellant is not entitled to
the decree sought for. Learned Munsiff on the
evidence of PW1 and Ext.A1 to A9, dismissed the
suit holding that the suit is barred under section
27 of the Building Tax Act. Appellant challenged
the decree and judgment before Additional District
Court, Thrissur in A.S.176/05. Learned Additional
District Judge on reappreciation of evidence
confirmed the decision of the learned Munsiff and
dismissed the appeal. It is challenged in the
second appeal.
R.S.A.No.281/07 3
2. Learned counsel appearing for the appellant
was heard.
3. The argument of learned counsel appearing
for appellant was that appellant is neither the
owner nor the assessee who is liable to pay
building tax and his case is that he cannot be
assessed for the building tax under the provisions
of Building Tax Act as the building does not belong
to him as he is not an owner as defined under the
Act, and therefore he cannot be proceeded for
realisation of the building tax and Section 27 of
the Kerala Building Tax Act, 1975 does not apply
and courts below should have granted the decree
sought for.
4. Section 27 of Kerala Building Tax Act,
1975 reads:-
“Bar of suits etc. in
courts- No suit shall be
brought in any civil
court to set aside or
modify any assessment
R.S.A.No.281/07 4
made under this Act and
no prosecution, suit or
other proceeding shall
lie against the
Government or any
authority or officer for
anything in good faith
done or intended to be
done under this Act.”
Under the said section, no suit could be instituted
before a civil court either to set aside or modify
any assessment made under the Act. Section 9 of
the Act deals with assessment. Under sub section
(1) of Section 9, if the assessing authority is
satisfied that a return made by an owner under
section 7 or section 8 is correct and complete, it
shall assess the amount payable by him as building
tax on the basis of the return. Under sub section
(2), if the assessing authority is not so
satisfied, it shall serve a notice on the assessee
either to attend in person at its office on a date
R.S.A.No.281/07 5
to be specified in the notice or to produce or
cause to be produced on that date any evidence on
which the assessee may rely in support of his
return. Under sub section (3) the assessing
authority, after hearing such evidence as the
assessee may produce and such other evidence as it
may require on any specified point and after
conducting such inquiries or inspection as it may
consider necessary, shall by order in writing,
assess the amount payable by him as building tax.
5. Ext.A1 notice was issued as provided under
sub section (2) of Section 9. Ext.A3 order was
passed as provided under sub section (3) assessing
the amount payable by the appellant as building
tax. Sub clause (c) of Section 2 of the Act
defines an assessee as follows:-
“assessee” means a person
by whom building tax or
any other sum of money is
payable under this Act
and includes every person
R.S.A.No.281/07 6
in respect of whom any
proceeding under this Act
has been taken for the
assessment of the
building tax payable by
him.
As per the definition, a person by whom building
tax or any other sum of money is payable under the
Act is an assessee. The argument of learned
counsel appearing for appellant was that building
tax under the Act is payable only by the owner and
as defined under clause (i) “owner” could only be a
person who for the time being is receiving or is
entitled to receive rent of any building, whether
on his own account or on account of anybody else
and therefore appellant cannot be an assessee.
The argument could have been accepted if the
definition of assessee is limited to a person by
whom building tax is payable. But as per the
definition, an assessee includes every person in
respect of whom any proceeding under this Act has
R.S.A.No.281/07 7
been taken for the assessment of the building tax
payable by him. When a notice, as contemplated
under sub section (2) of Section 9 was issued to
the appellant proposing to assess the building tax
payable by him and subsequent to that notice
under sub section (3), an order was passed
assessing the building tax payable by the
appellant, it need no further explanation to hold
that appellant is an assessee as defined under the
Act, as proceedings under the Act has been taken
for the assessment of the building tax payable by
him.
6. Section 11 provides that an assessee
objecting to the amount of building tax assessed
under section 9 or denying his liability to be
assessed under the Act, or objecting to any order
of the assessing authority under the Act may appeal
to the Appellate Authority against the assessment
or against such order. Hence it is clear from sub
section (1) of Section 11, that any person who is
assessed to building tax under section 9(3) and
R.S.A.No.281/07 8
who is denying his liability to be assessed under
the Act or who is objecting to any order of the
assessing authority is entitled to file an appeal
against the order of assessment. If that be so,
under section 27, the suit is definitely barred.
No substantial question of law arises for
consideration in the appeal. The appeal is
dismissed.
Learned counsel appearing for appellant then
submitted that the period for preferring an appeal
has expired and appellant may be granted an
opportunity to file an appeal as provided under
section 11. Appellant is entitled to file an
appeal as provided under the Act. The question
whether delay could be condoned or not is to be
decided by the authority under the Act.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A.NO.527 /1993
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JUDGMENT
23rd March,2007