Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH DAY OF JANUARY 2013 9TH MAGHA 193 WP(C).No. 35239 of 2009 (Y) --------------------------- PETITIONER(S) : --------------------- JOSEPH.V.P,S/O.PORINCHU,AGED 4 YEARS, VAZHAPPILLY HOUSE,MUNDATHICODE.PO,& VILLAGE TALAPPILLY TALUK,THRISSUR DISTRICT-680 595. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S) : ------------------------ 1. THE TAHSILDAR AND ASSESSING AUTHORITY, BUILDING TAX ACT,TALAPPILLY TALUK,TALUK OFFICE WADAKKANCHERRY.PO,THRISSUR DISTRICT.
2. MUNDATHICODE GRAMA PANCHAYATH, PANCHAYATH OFFICE,MUNDATHICODE.PO, THRISSUR DISTRICT, REP.ITS SECRETARY. R1 BY SENIOR GOVERNMENT PLEADER SRI. JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP WP(C).No. 35239 of 2009 (Y) APPENDIX PETITIONER'S EXHIBITS : P1: COPY OF THE NO OBJECTION CERTIFICATE DT 8/12/2006 ISSUED BY THE R2. P2: COPY OF THE PERMISSION GIVEN BY THE PANCHAYATH TO CONTINUE THE CONSTRUCTION OF THE BUILDING DT 23/9/08. P3: COPY OF COMPLETION CERTIFICATE WITH SKETCH DT 25/07/09 ISSUED BY THE PANCHAYATH P4: COPY OF THE COMPLETION OF THE BUILDING RECORDED BY THE PANCHAYATH IN THE PLAN AND SKETCH DT 29/10/09. P5: COPY OF THE RECEIPT DT 26/10/09 ISSUED BY THE PANCHAYAT TO THE PETITIONER P6: COPY OF THE NOTICE DT 24/09/09 ISSUED BY THE R1. P7: COPY OF THE OBJECTION SENT BY THE PETITIONER TO THE R1 DT 14/10/09 WITH ALL RECORDS P8: COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT DT 24/11/09 HAVING NO.B-10-25658/09/261 SERVED ON THE PETITIOENR ON 1/12/09 RESPONDENT'S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE BP ANTONY DOMINIC, J.
================ W.P.(C) NO. 35239 OF 200.=================== Dated this the 29th day of January, 2013 JUDGMENT
Petitioner challenges Ext.P8, an order of assessment and notice of demand issued under the Kerala Building Tax Act, assessing his building for building tax. The case of the petitioner is that, Ext.P4 is the approved plan of the building. It is stated that the approved plan consists of commercial area and also residential area. However, instead of assessing both the aforesaid portions of the building separately under the respective heads, by Ext.P8, the entire building has been assessed as other building. It is therefore that this writ petition is filed.
2. It is the settled position of law that, if a building consists of commercial and residential portions, the respective portions are to be assessed separately applying the rate of tax as specified in the Act. If that be the legal position, assessment now completed by Ext.P8 treating the entire building as other building is illegal. However, learned Government Pleader contended that, to Ext.P6 notice, the petitioner did not file any objection and it was therefore that the assessment had to be completed. To this WPC.No.35239/09 :2 : contention, learned counsel for the petitioner states that his client appeared before the Tahsildar, but however, the Tahsildar refused to accept Ext.P7 objection.
3. Irrespective of the correctness of the assertions made by either of the parties, fact remains that the entire building has been assessed in an illegal manner. For that reason, Ext.P8 assessment and notice of demand deserves interference.
4. Accordingly, I dispose of this writ petition quashing Ext.P8. Petitioner or his authorised representative will appear before the 1st respondent on or before 8/2/13. Thereupon the 1st respondent will hear the petitioner, measure the respective portions of the building and on that basis, pass fresh assessment order. It is directed that, any payment made by the petitioner will be appropriated towards the liability to be so fixed. Petitioner will produce a copy of this judgment before the 1st respondent for compliance. ANTONY DOMINIC, JUDGE Rp