IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE6H DAYOF FEBRUARY201417TH MAGHA, 1935` WP(C).No. 2495 of 2010 (J) --------------------------- PETITIONER(S): -------------------------- A.R. NAGAR SERVICE CO-OPERATIVE BANK LTD.NO.F-583, P.O.A.R. NAGAR, MALAPPURAM - 676 305, REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.B.S.SWATHI KUMAR SMT.P.A.ANITHA RESPONDENT(S): ---------------------------- 1. THE DISTRICT LABOUR OFFICER, MALAPPURAM.
2. ASSISTANT OFFICER UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT/ASSISTANT LABOUR OFFICER, GR.I, DISTRICT LABOUR OFFICE, MALAPPURAM. R1 & R2 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0602-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2495/2010 (J) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF THE VALUATION CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, P.W.D.BUILDING DIVISION, MALAPPURAM DTD. 03/05/02. EXHIBIT P2: COPY OF THE VALUATION CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, PWD BUILDING DIVISION, MALAPPURAM DTD. 20/11/2003. EXHIBIT P3: COPY OF THE NOTICE NO.B2-808/09 DTD. 07/03/2009 ISSUED BY THE2D RESPONDENT. EXHIBIT P4: COPY OF THE NOTICE NO.B2-784/09 DTD. 27/03/2009 ISSUED BY THE2D RESPONDENT. EXHIBIT P5: COPY OF TH4 REPLY DTD. 20/04/2009 SUBMITTED BY THE PETITIONER BEFORE THE2D RESPONDENT. EXHIBIT P6: COPY OF THE ASSESSMENT NOTICE NO.B2-808/09 DTD. 27/03/2009 ISSUED BY2D RESPONDENT. EXHIBIT P7: COPY OF THE NOTICE NO.C2-784/09 DTD. 19/06/09 ISSUED BY2D RESPONDENT. EXHIBT P8: COPY OF THE FINAL ORDER
C2-784/09 DTD. 21/10/2009 ISSUED BY2D RESPONDENT. EXHIBIT P9: COPY OF THE NOTICE NO.C2-784/09 DTD. 20/08/09 ISSUED BY THE2D RESPONDENT. RESPONDENT'S EXHIBITS: EXHIBIT R2(a):COPY OF THE RETURN DTD. 20/04/2009. EXHIBIT R2(b):COPY OF THE CIRCULAR DTD. 18/02/2008. /TRUE COPY/ P.A.TO JUDGE Kss K. VINOD CHANDRAN, J.
===================== W.P.(C) No. 2495 of 2010 ====================== Dated this the 6th day of February, 2014
JUDGMENT
The petitioner is a Society, which carried on construction activities covered under the Building and Other Construction Workers' Welfare Cess Act, 1996, and the Building and Other Construction Workers' Welfare Cess Rules, 1998 framed thereunder. The Act was in force at the time of construction and as per the provisions of the Act and the rules framed thereunder there was an obligation cast on the petitioner, who is the owner of the building, to file returns on completion of construction. Obviously the petitioner did not file the returns. In such circumstance, the Assistant Labour Officer Gr. I, Malappuram, who was the authority notified as the assessing officer under the Act, issued notice Ext. P3, directing the petitioner to submit returns under Form-I. The petitioner Bank replied by way of Ext. P5 and the authority issued an assessment notice, W.P.(C) No. 2495 of 2010 2 Ext. P4.
2. By Ext. P4, assessment was determined on a plinth area of 607.38 sq.metre. The petitioner contends that Ext. P5 reply, indicated the valuation of the construction as also the plinth area and the notice was contrary to what was declared. It was also the contention of the petitioner in Ext. P5 that, the present assessment notice was not with respect to the construction carried on in the year 2001-2002, in which event, Exts. P1 and P2 certificates would not be relevant.
3. In any event, the assessing officer again issued three assessment notices produced as Exts. P6, P7 and P9, which according to the petitioner, clearly indicates an arbitrary exercise of power under the Act, without looking into the relevant materials. It is on these grounds, the petitioner would claim that, the assessment ought to have been carried on as per the valuation certificate Exts. P1 and P2.
4. As has been noticed above, the petitioner does W.P.(C) No. 2495 of 2010 3 not have a consistent stand with respect to the construction activity carried on. Admittedly, construction was carried on and on issuance of notice, a return in Form-I was also filed by the petitioner; which is evident from Ext. R2(a). Total plinth area indicated in Ext. R2(a) is 1200 sq.ft. and the estimated cost of construction shown is 38.71 lakhs. This does not at all tally with Exts. P1 and P2 certificates. The petitioner has produced two valuation certificates issued by the office of the Executive Engineer, PWD, Buildings Division, Malappuram, showing that the valuation of the construction carried on were respectively Rs. 22,02,863/- and 1,47,95,400/-. However, neither the area which is constructed nor the period when such construction was carried on is specified in either of the certificates. Hence no reliance can be placed on Exts. P1 and P2.
5. It is the contention of the learned Government Pleader that, it was on the basis of Ext. R2(a) that valuation was carried on and the assessment completed, as per Ext. P8. Ext. P9 is the assessment notice issued to the W.P.(C) No. 2495 of 2010 4 petitioner on 20.08.2009 which indicates 1200 sq.ft metres of building construction as has been declared in the return filed by the petitioner itself. It is on that basis, that Ext. P8 order has been passed, valuing the construction at Rs. 63,60,000/- and assessing cess of Rs. 63,600/-. This Court is not convinced that, there is any arbitrary exercise of power. The petitioner was given valid opportunity to appear and contest the assessment. The respective notices in fact disclose a consideration of the relevant materials. The final assessment made as per Ext. P8 is less than that threatened by the earlier notices; Exts. P6 & P7.
6. The learned counsel for the petitioner has another contention that, the definition of "employer", under the Act is that adopted from the Building and Other Construction Workers (Regulation of Employment and Service) Act, 1996. The definition in the said Act of 1996 according to the petitioner includes only a contractor, and hence the petitioner cannot be assessed as an employer, is the contention. However, the definition of employer W.P.(C) No. 2495 of 2010 5 provided in section 2(i) starts with: "employer" in relation to an establishment, means "the owner there of and includes...". What has been extracted in the Writ Petition to raise such a contention is only the inclusive definition and the employer as defined under the Act of 1996 and applicable to the CESS Act would take in the owner of a building also. It is also to be noticed that, the petitioner had an alternate remedy of an appeal against Ext. P8 order, which the petitioner has not availed of. The contentions of the petitioner having been found to be devoid of merit, the Writ Petition is dismissed. No costs. Sd/- K. VINOD CHANDRAN, JUDGE SB