IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25114 of 2010(L)
1. M/S.ORISON TRADING AND CONTRACTING
... Petitioner
Vs
1. THE STATE OF KERALA, REP.BY THE
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. THE TAHSILDAR,TALUK OFFICE,
4. THE VILLAGE OFFICER,KUNNAMKULAM VILLAGE
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :11/08/2010
O R D E R
P.R.RAMACHANDRA MENON, J.
-------------------------------------
W.P.(C) No.25114 OF 2010
-------------------------------------
Dated this the 11th day of August, 2010
J U D G M E N T
~~~~~~~~~~~
The petitioner is stated as aggrieved by the course
pursued by the assessing authority with regard to the fixation of
liability under Section 5 of the Kerala Building Tax Act, inspite
of the clear mandate given by the appellate authority as per
Ext.P6.
2. The case of the petitioner is that the building was
originally constructed by the petitioner much previous to
10.2.1992, which is the ‘appointed date’ and the petitioner
effected some additional constructions thereafter. This being
the position, the tax liability, if at all any can only be as provided
under Section 5(3), that is, in respect of the additional portion
alone and not taking the entire building as a whole as provided
under Section 5(4).
W.P.(C) No.25114/2010 2
3. In fact, the assessment finalised by the 3rd respondent
was challenged by the petitioner by filing statutory appeal and
after considering the merits involved, Ext.P4 assessment order
and Ext.P5 demand notice were set aside by the appellate
authority (2nd respondent) as per Ext.P6 order and the matter
was remanded to the assessing authority to complete the
assessment as provided under Section 5(3) of the Act. Pursuant
to the remand, the matter was considered by the assessing
authority, who passed Ext.P7 order dated 17.6.2010, simply
stating that on perusing the relevant records and after hearing
the petitioner and also on conducting a site inspection,
absolutely no change was warranted with regard to the order
already passed. Accordingly, the earlier order was simply
sustained casting the liability upon the petitioner as it was
originally fixed, which forms the subject matter of challenge in
this Writ Petition.
4. Heard the learned Government Pleader as well.
W.P.(C) No.25114/2010 3
5. Going by the materials on record, there need not be
any second thought for this Court to arrive at s finding that the
course pursued by the 3rd respondent/assessing authority in
passing Ext.P7 order is not correct or sustainable. A specific
direction was given by the appellate authority in Ext.P6, as to the
manner of assessment, stipulating that it shall be done as
provided under Section 5(3) of the Act. Absolutely, no reference
has been made by the assessing authority to the above provision
and no finding has been arrived at, holding that the averment
raised by the petitioner that the original construction was
effected prior to the ‘appointed date’ is wrong or that the entire
construction has been effected after the ‘appointed date’, so as
to sustain the assessment under Section (4).
6. In the above circumstances, there is no other
alternative, but to set aside Ext.P7. Accordingly, Ext.P7 is set
aside and the 3rd respondent is directed to finalise the
assessment as specifically ordered by the appellate authority
vide Ext.P6 passing a ‘speaking order’ with reference to the
W.P.(C) No.25114/2010 4
relevant provisions of law. The 3rd respondent is also at liberty
to call for the relevant records from the concerned authorities,
including the local authority, if so necessitated. It is for the
petitioner to furnish all the requisite materials to substantiate
his contentions before the 3rd respondent. The proceedings as
above shall be finalised, as expeditiously as possible, at any rate,
within three months from the date of receipt of a copy of this
judgment.
The Writ Petition is disposed of as above.
(P.R.RAMACHANDRA MENON, JUDGE)
ps