Sangetham Apartment Owner's Association Vs. the Tahsildar (Building Tax Assessing Au

Decided On : Sep-29-2014

Court : Kerala

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BY GOVERNMENT PLEADER SRI.VIJIN V.STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2909-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2373 of 2007 (G) 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF THE CERTIFICATE OF THE REGISTRATION OF THE PETITIONER ASSOCIATION EXT.P2: PHOTOCOPY OF THE NOTICE NO.39/2 DATED1901.2001 ISSUED BY THE REVENUE INSPECTOR UNDER THE RESPONDENT TO THE PETITIONER EXT.P3: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED512.2001 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P4: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2707.2002 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P5: PHOTOCOPY OF THE COVERING LETTER DATED1408.2002 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P6: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2306.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P7:PHOTOCOPY OF THE REPLY DATED87.2003 SUBMITTED BY THE CHAIRMAN OF SANGETHAM BUILDERS (P) LTD. 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EXT.P8: PHOTOCOPY OF THE LETTER NO.26883/H3/95/TD DATED2811.1996 ISSUED BY SPECIAL SECRETARY TO GOVERNMENT (TAXES), TAXES (H) DEPARTMENT, THIRUVANANTHAPURAM EXT.P9:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED262.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P10:PHOTOCOPY OF THE OBJECTIONS DATED275.2005 TO EXHIBIT P9 NOTICE FILED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P11:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED0707.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P12:PHOTOCOPY OF THE LETTER NO.B2/2204/2001 DATED1307.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P13:PHOTOCOPY OF THE OBJECTIONS DATED2807.2005 TO EXHIBIT P12 ASSESSMENT NOTICE SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P14:PHOTOCOPY OF THE ACKNOWLEDGMENT IN THE LOCAL DELIVERY BOOK OF THE PETITIONER FOR SERVING EXHIBITS P10 AND P13 EXT.P15:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2006.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER WP(C).No. 2373 of 2007 (G) 3 EXT.P16:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED236.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P17:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED1912.2006 OF ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P18:PHOTOCOPY OF THE PROCEEDINGS NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P19:PHOTOCOPY OF THE </p>ORDER<p> OF ASSESSMENT NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P20:PHOTOCOPY OF THE DEMAND NOTICE NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.</p><p>---------------------------------------- W.P.(C).No.2373 of 2007 ---------------------------------------- Dated this the 29th day of September, 2014 </p><p>JUDGMENT</p><p> The petitioner is an association of apartment owners. It is essentially aggrieved by Ext.P19 order of assessment under the Kerala Building Tax Act, 1975 whereby the building, in which the members of the petitioner association have independent residential units, has been assessed as single unit for the purposes of building tax. It is the specific case of the petitioner that at the time of hearing before the respondent, the petitioner had made available all the relevant documents to evidence that the cost of construction of the building was separately met by the various apartment owners and hence, the building tax assessment should have been done on their individual units separately by treating them to separate units in accordance with Section 2(e) of the Kerala Building Tax Act. It is pointed out that, in Ext.P19 order of assessment, the respondent has not dealt with any of the documents that have been produced by the petitioner at the time of hearing and in that sense the assessment is vitiated by a patent non -application of mind.</p><p>2. I have heard the learned counsel for the petitioner Sri.Mathew Skaria, as also the learned Government Pleader appearing on behalf of the respondent. W.P.(C).No.2373 of 2007 -2- 3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that insofar as Ext.P18, on the face of it, does not deal with the documents that were produced by the petitioner, and it is the specific case of the petitioner that various documents were produced at the time of hearing which have not been considered at the time of passing Ext.P19 order, it would be in the interests of justice to quash Ext.P19 order of the assessment and Ext.P20 notice of demand so as to enable the respondent to consider the matter afresh taking into account the documents produced by the petitioner as also the decisions of this Court in Nelson Rozario v. State of Kerala (2013 (1) KLT573 and Varghese v. State of Kerala (2013 (2) KLT831. 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BY GOVERNMENT PLEADER SRI.VIJIN V.STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2909-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2373 of 2007 (G) 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF THE CERTIFICATE OF THE REGISTRATION OF THE PETITIONER ASSOCIATION EXT.P2: PHOTOCOPY OF THE NOTICE NO.39/2 DATED1901.2001 ISSUED BY THE REVENUE INSPECTOR UNDER THE RESPONDENT TO THE PETITIONER EXT.P3: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED512.2001 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P4: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2707.2002 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P5: PHOTOCOPY OF THE COVERING LETTER DATED1408.2002 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P6: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2306.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P7:PHOTOCOPY OF THE REPLY DATED87.2003 SUBMITTED BY THE CHAIRMAN OF SANGETHAM BUILDERS (P) LTD. 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			'judgement' => '<p>IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE29H DAY OF SEPTEMBER20147TH ASWINA, 1936 WP(C).No. 2373 of 2007 (G) --------------------------- PETITIONER(S): --------------- SANGETHAM APARTMENT OWNERS' ASSOCIATION, ATLANTIS JUNCTION, M.G.ROAD ERNAKULAM, REP. BY ITS SECRETARY, SAMSON TOM. BY ADVS.SRI.MATHEW SKARIA SRI.JOSE THOMAS (PEEDIKAYIL) RESPONDENT(S): --------------- THE TAHSILDAR (BUILDING TAX ASSESSING AUTHORITY), TALUK OFFICE, KANAYANNUR. BY GOVERNMENT PLEADER SRI.VIJIN V.STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2909-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2373 of 2007 (G) 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF THE CERTIFICATE OF THE REGISTRATION OF THE PETITIONER ASSOCIATION EXT.P2: PHOTOCOPY OF THE NOTICE NO.39/2 DATED1901.2001 ISSUED BY THE REVENUE INSPECTOR UNDER THE RESPONDENT TO THE PETITIONER EXT.P3: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED512.2001 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P4: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2707.2002 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P5: PHOTOCOPY OF THE COVERING LETTER DATED1408.2002 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P6: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2306.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P7:PHOTOCOPY OF THE REPLY DATED87.2003 SUBMITTED BY THE CHAIRMAN OF SANGETHAM BUILDERS (P) LTD. BEFORE THE RESPONDENT. EXT.P8: PHOTOCOPY OF THE LETTER NO.26883/H3/95/TD DATED2811.1996 ISSUED BY SPECIAL SECRETARY TO GOVERNMENT (TAXES), TAXES (H) DEPARTMENT, THIRUVANANTHAPURAM EXT.P9:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED262.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P10:PHOTOCOPY OF THE OBJECTIONS DATED275.2005 TO EXHIBIT P9 NOTICE FILED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P11:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED0707.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P12:PHOTOCOPY OF THE LETTER NO.B2/2204/2001 DATED1307.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P13:PHOTOCOPY OF THE OBJECTIONS DATED2807.2005 TO EXHIBIT P12 ASSESSMENT NOTICE SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P14:PHOTOCOPY OF THE ACKNOWLEDGMENT IN THE LOCAL DELIVERY BOOK OF THE PETITIONER FOR SERVING EXHIBITS P10 AND P13 EXT.P15:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2006.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER WP(C).No. 2373 of 2007 (G) 3 EXT.P16:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED236.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P17:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED1912.2006 OF ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P18:PHOTOCOPY OF THE PROCEEDINGS NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P19:PHOTOCOPY OF THE </p>ORDER<p> OF ASSESSMENT NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P20:PHOTOCOPY OF THE DEMAND NOTICE NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.</p><p>---------------------------------------- W.P.(C).No.2373 of 2007 ---------------------------------------- Dated this the 29th day of September, 2014 </p><p>JUDGMENT</p><p> The petitioner is an association of apartment owners. It is essentially aggrieved by Ext.P19 order of assessment under the Kerala Building Tax Act, 1975 whereby the building, in which the members of the petitioner association have independent residential units, has been assessed as single unit for the purposes of building tax. It is the specific case of the petitioner that at the time of hearing before the respondent, the petitioner had made available all the relevant documents to evidence that the cost of construction of the building was separately met by the various apartment owners and hence, the building tax assessment should have been done on their individual units separately by treating them to separate units in accordance with Section 2(e) of the Kerala Building Tax Act. It is pointed out that, in Ext.P19 order of assessment, the respondent has not dealt with any of the documents that have been produced by the petitioner at the time of hearing and in that sense the assessment is vitiated by a patent non -application of mind.</p><p>2. I have heard the learned counsel for the petitioner Sri.Mathew Skaria, as also the learned Government Pleader appearing on behalf of the respondent. W.P.(C).No.2373 of 2007 -2- 3. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that insofar as Ext.P18, on the face of it, does not deal with the documents that were produced by the petitioner, and it is the specific case of the petitioner that various documents were produced at the time of hearing which have not been considered at the time of passing Ext.P19 order, it would be in the interests of justice to quash Ext.P19 order of the assessment and Ext.P20 notice of demand so as to enable the respondent to consider the matter afresh taking into account the documents produced by the petitioner as also the decisions of this Court in Nelson Rozario v. State of Kerala (2013 (1) KLT573 and Varghese v. State of Kerala (2013 (2) KLT831. The amounts paid by the petitioner, pending disposal of this writ petition, shall be retained by the respondent and shall be adjusted against the final dues found to be payable in respect of the building/apartments in question. The respondent shall pass fresh orders in the matter after hearing the petitioner and after considering the documents, if any, produced by the petitioner in support of his contention, within a period of two months from the date of receipt of a copy of this judgment. A.K.JAYASANKARAN NAMBIAR JUDGE mns W.P.(C).No.2373 of 2007 -3-',
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BY GOVERNMENT PLEADER SRI.VIJIN V.STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2909-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2373 of 2007 (G) 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF THE CERTIFICATE OF THE REGISTRATION OF THE PETITIONER ASSOCIATION EXT.P2: PHOTOCOPY OF THE NOTICE NO.39/2 DATED1901.2001 ISSUED BY THE REVENUE INSPECTOR UNDER THE RESPONDENT TO THE PETITIONER EXT.P3: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED512.2001 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P4: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2707.2002 ISSUED FROM THE OFFICE OF THE RESPONDENT TO THE PETITIONER EXT.P5: PHOTOCOPY OF THE COVERING LETTER DATED1408.2002 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P6: PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2306.2003 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P7:PHOTOCOPY OF THE REPLY DATED87.2003 SUBMITTED BY THE CHAIRMAN OF SANGETHAM BUILDERS (P) LTD. BEFORE THE RESPONDENT. EXT.P8: PHOTOCOPY OF THE LETTER NO.26883/H3/95/TD DATED2811.1996 ISSUED BY SPECIAL SECRETARY TO GOVERNMENT (TAXES), TAXES (H) DEPARTMENT, THIRUVANANTHAPURAM EXT.P9:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED262.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P10:PHOTOCOPY OF THE OBJECTIONS DATED275.2005 TO EXHIBIT P9 NOTICE FILED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P11:PHOTOCOPY OF THE ASSESSMENT NOTICE NO.B2/2204/2001 DATED0707.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P12:PHOTOCOPY OF THE LETTER NO.B2/2204/2001 DATED1307.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P13:PHOTOCOPY OF THE OBJECTIONS DATED2807.2005 TO EXHIBIT P12 ASSESSMENT NOTICE SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT EXT.P14:PHOTOCOPY OF THE ACKNOWLEDGMENT IN THE LOCAL DELIVERY BOOK OF THE PETITIONER FOR SERVING EXHIBITS P10 AND P13 EXT.P15:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED2006.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER WP(C).No. 2373 of 2007 (G) 3 EXT.P16:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED236.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P17:PHOTOCOPY OF THE NOTICE NO.B2/2204/2001 DATED1912.2006 OF ISSUED BY THE RESPONDENT TO THE PETITIONER EXT.P18:PHOTOCOPY OF THE PROCEEDINGS NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P19:PHOTOCOPY OF THE </p>ORDER<p> OF ASSESSMENT NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT EXT.P20:PHOTOCOPY OF THE DEMAND NOTICE NO.B2/2204/2001 DATED2612.2006 OF THE RESPONDENT RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.</p><p>---------------------------------------- W.P.(C).No.2373 of 2007 ---------------------------------------- Dated this the 29th day of September, 2014 </p><p>JUDGMENT</p><p> The petitioner is an association of apartment owners. It is essentially aggrieved by Ext.P19 order of assessment under the Kerala Building Tax Act, 1975 whereby the building, in which the members of the petitioner association have independent residential units, has been assessed as single unit for the purposes of building tax. It is the specific case of the petitioner that at the time of hearing before the respondent, the petitioner had made available all the relevant documents to evidence that the cost of construction of the building was separately met by the various apartment owners and hence, the building tax assessment should have been done on their individual units separately by treating them to separate units in accordance with Section 2(e) of the Kerala Building Tax Act. 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LAW: NOTICE, Section 2(e

ORG: JUSTICE, REP, SAMSON TOM, PEEDIKAYIL, KANAYANNUR, H3/95/TD, TAXES, TAXES, THIRUVANANTHAPURAM, NOTICE, NAMBIAR, Ext, the Kerala Building Tax Act, the Kerala Building Tax Act, Ext, W.P.(C).No.2373, Bar, Ext, Ext, Ext, Ext, Court

DATE: MONDAY, 1936, 2373 of 2007, 2373 of 2007, 2373 of 2007, 2007, this the 29th day of September, 2014, 1975, 2007, 2013, 2013, a period of, two months, 2007

PERSON: SKARIA SRI.JOSE THOMAS, P13 EXT.P15, Sri, Mathew Skaria, Pleader, Nelson Rozario v. State, mns W.P.(C).No.2373

CARDINAL: 2, P9, 3, 3, 1, 2

GPE: Kerala, Kerala, KLT831

NORP: Varghese