IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH DAY OF JANUARY 2013 26TH POUSHA 193 WP(C).No. 11697 of 2008 (P) --------------------------- PETITIONER(S): ---------------- SURESH BABU, S/O.VISWANATHAN, SS LAND,KADAKKAVUR P.O.,PIN-695 306 POWER OF ATTORNEY REP. BY PRASOBHANA,W/O.SURESHBABU SS LAND,KADAKKAVUR. BY ADVS.SRI.R.ANILKUMAR SRI.P.BANI RESPONDENT(S): ----------------- 1. ASSESSMENT OFFICER, BUILDING CONSTRUCTION WORKERS WELFARE ACT TRIVANDRUM.
2. SECRETARY, BUILDING & OTHER CONSTRUCTION WORKERS WELFARE BOARD,THYCAUD P.O. THIRUVANANTHAPURAM.
3. STATE OF KERALA REP. BY SECRETARY, SOCIAL WELFARE DEPARTMENT,GOVT. SECRETARIAT THIRUVANANTHAPURAM.
4. CHANDRADAS, S/O.KUNJURAMAN, GILLETTE HOUSE,KALLAMKONAM,VARKALA-695 141 THIRUVANANTHAPURAM. R3 BY SR. GOVERNMENT PLEADER SRI. K.C. VINCENT R4 BY ADV. SRI.D.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11697 of 2008 (P) APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE PHOTOCOPY OF THE SALE DEED DATED 25 10.2005. EXT.P2: TRUE PHOTOCOPY OF THE LAND TAX RECEIPT NO.1967215 DATED 20 10.2006 EXT.P3:TRUE PHOTOCOPY OF THE APPLICATION FOR CHANGE OF REGISTRY SUBMITTED BEFORE THE VARKALA MUNICIPALITY ON 5.10.2005. EXT.P4: TRUE PHOTOCOPY OF THE DEMAND NOTICE NO.C2/5526/07 DATED 25 2.08 ISSUED BY THE 1ST RESPONDENT RESPONDENTS' EXHIBITS : NIL //True copy// P.A. TO JUDGE Shg/ S. SIRI JAGAN, J.
- - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.11697 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of January, 2013 JUDGMENT
The petitioner claims to have purchased a property with a building thereon. He purchased the same for a total sale consideration of Rs.75 lakhs. Subsequent to the purchase, the petitioner was issued with Ext.P4 notice by the 1st respondent directing the petitioner to pay Rs.42,522/- as cess under the Building and Other Construction Workers' Welfare Cess Act, 1996, on the construction costs of Rs.42,52,190/- for the building. The petitioner is challenging Ext.P4 demand for cess under the said Act on the ground that the same is payable only by the original owner, who constructed the building and that the petitioner, being a subsequent purchaser, is not liable to pay cess under the Act.
2. The learned Government Pleader submits that liability is on the owner, which would include the present W.P.(C) No.11697 of 2008 -2- owner as well. He points out that for the purpose of the Building and Other Construction Workers' Welfare Cess Act, 1996, the words and expressions used in that Act but not defined but defined in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, (hereinafter referred to as the parent Act) shall have the meanings respectively assigned to them in that Act. In the parent Act, the expression 'employer' who is liable to pay cess is defined to mean the owner of an establishment and includes others described therein also. Therefore, whoever is the owner of the building as on the date of demand is liable to pay the cess. Therefore, according to the learned Government Pleader, since the petitioner answers the definition of 'employer' for the purpose of Act, the petitioner is liable to pay the cess as demanded in Ext.P4.
3. I have considered the rival contentions in detail.
4. The levy and collection of cess under the Building and Other Construction Workers' Welfare Cess Act, 1996 is W.P.(C) No.11697 of 2008 -3- as per Section 3 of the Act, which reads thus:
3. Levy and collection of cess.- (1) There shall be levied and collected a cess for the purposes of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act,1996, at such rate not exceeding two per cent but not less than one per cent of the cost of construction incurred by an employer, as the Central Government may, by notification in the Official Gazette, from time to time specify." Going by the same, the liability to pay cess under the Act is on the employer. The expression 'employer' is not defined in the said Act. But Section 2 (d) of the Act provides thus: "2. (d) words and expressions used herein but not defined and defined in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 shall have the meanings respectively assigned to them in that Act." The expression 'employer' is defined in Section 2 (i) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, which reads thus: "2. (i) "employer", in relation to an establishment, means the owner thereof, and includes,- (i) in relation to a building or other construction work carried on by or under the authority of any department of the Government, directly without any contractor, the authority specified in this behalf, or where no authority is specified, the head of the department;" W.P.(C) No.11697 of 2008 -4- Going by the same, the owner of a building is liable to pay cess. Therefore, all owners of the building, if the cess remains unpaid, are liable to pay the cess payable under the Act, notwithstanding the fact that the owner is a subsequent owner. Admittedly the petitioner was the owner of the building at the time of issuing Ext.P4. The cess remains unpaid also. Consequently, the petitioner is liable to pay the cess as demanded in Ext.P4. Therefore, I do not find any merit in the writ petition and accordingly the same is dismissed. However, I make it clear that, if the petitioner is entitled to recover the cess paid by him from the previous or original owner, this judgment will not preclude him from doing so. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/