Kerala High Court
M.S.Kalesh vs The Union Of India on 5 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942
WP(C).No.8840 OF 2014(D)
PETITIONERS:
1 M.S.KALESH
S/O.P.A.SREEDHARAN, SIVAKRUPA, POLICE QUARTER'S ROAD,
VAIKOM P.O., VAIKOM, KOTTAYAM-686141.
2 SEEMA VASAVAN
W/O.M.S.KALESH, SIVAKRUPA, POLICE QUARTER'S ROAD,
VAIKOM P.O., VAIKOM, KOTTAYAM-686141.
BY ADV. SRI.R.S.KALKURA
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, LABOUR DEPARTMENT,
GOVERNMENT OF INDIA, NEW DELHI.
2 THE ASSESSMENT OFFICER
BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE CESS ACT
DISTRICT LABOUR OFFICER'S OFFICE, CIVIL STATION,
COLLECTORATE P.O., CIVIL STATION, KOTTAYAM-686002.
3 SECRETARY
KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE
BOARD, TRIVANDRUM.
4 THE DISTRICT COLLECTOR
CIVIL STATION, KOTTAYAM DISTRICT, PIN-686002.
5 THE DEPUTY TAHSILDAR REVENUE RECOVERY
TALUK OFFICE, VAIKOM, VAIKOM P.O., KOTTAYAM-686141.
R1 BY SRI.ARUN B.VARGHESE, C.G.C.
R1 BY ADV. SRI.ARUN B.VARGHESE C.G.C.
R1 BY ADV. SRI.ASHIK K.MOHAMED ALISCKB OCWWB
R3 BY ADV. SRI.ASHIK K.MOHAMED ALI,SC,KB & OCWWB
R3 BY SRI.S.KRISHNA MOORTHY, SC, KB & OCWWB
OTHER PRESENT:
SMT REKHA C NAIR-GP, SRI S KRISHNAMOORTHY -SC KB &OCWWB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.8840/2014 -2-
JUDGMENT
DATED THIS THE 5th DAY OF MARCH, 2021
Gopinath, J:
This writ petition has been filed challenging revenue recovery
proceedings initiated against the petitioners for recovery of amounts under
the Building and Other Construction Workers Welfare Cess Act, 1996
(hereinafter referred to as 'the Act' for short). The petitioners were served
with Ext.P2 assessment notice under the Act proposing to demand an
amount of Rs.15,986/- towards cess payable under the Act. The petitioners
issued Ext.P3 reply following which Ext.P4 revised assessment notice was
issued whereby the cost of construction of the building was reduced from
the amounts shown in Ext.P2. The petitioners thereupon submitted Ext.P5
reply. It is the case of the petitioner that without considering any objection
raised by him in Exts.P3 & P5 the authorities have initiated revenue
recovery proceedings.
2. A counter affidavit has been filed by the 2nd respondent
(Deputy Labour Officer, Kottayam) who is the assessing authority under
the Act. It is stated that though the petitioners submitted Exts.P3 and P5
objections the return enclosed along with Ext.P3 cannot be considered as a
return as the same is not a voluntary return as contemplated under the
provisions of the Act. It is submitted that the assessment was completed as
per the rates fixed by the Government and no relief can be granted
whatsoever to the petitioner. The learned counsel for the petitioners has
raised two specific contentions. His first contention is that going by the
provisions of Section 3 of the Act the liability to pay cess is on the employer
and not on the owner. The second contention is that at any rate the amount
of cess has to be calculated with reference to the amounts expended on
labour and cannot include the cost of construction materials etc. In the
nature of the order that I propose to pass, I do not deem it necessary to
consider these contentions at this stage.
3. Since both Ext.P2 & P4 are stated to be assessment notices and
are issued in printed form those proceedings cannot be construed in any
manner to be a proper assessment under the provisions of the Act. Even if
it is to be taken that the return submitted by the petitioners cannot be
accepted as a return, the officer concerned has to apply his mind to the
objections raised by the petitioners as no purpose will be served by serving
an assessment notice if the contentions raised in reply thereto are not
considered properly by the assessing officer. Therefore the revenue
recovery proceedings initiated against the petitioners following Ext.P4 shall
stand set aside. The 2nd respondent shall consider Exts.P3 and P5
objections of the petitioners and pass a speaking order after affording an
opportunity of hearing to the petitioners. In order to enable the 2nd
respondent to complete the assessment, the petitioners or any person
authorising by them shall appear before the 2 nd respondent on 25-03-2021
together with any documents that they may wish to rely upon in support of
their claim. The 2nd respondent shall consider Exts.P3 & P5 and any other
documents produced before him by the petitioners and pass a reasoned
order fixing the liability to cess under the provisions of the Act within a
period of 6 weeks from 25-03-2021. The writ petition shall stand disposed
of with the aforesaid directions.
(Sd/-)
GOPINATH P.
JUDGE
AMG
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXHIBIT P1 : TRUE COPY OF THE RECEIPT FOR THE
BUILDING TAX.
EXHIBIT P2 EXHIBIT P2 : TRUE COPY OF THE NOTICE DT.21-3-2012
ISSUED BY R2 TO THE PETITIONERS.
EXHIBIT P3 EXHIBIT P3 : TRUE COPY OF THE REPLY DT.12-4-2012
ISSUED BY THE PETITIONERS TO R2.
EXHIBIT P4 EXHIBIT P4 : TRUE COPY OF THE NOTICE DT.6-11-2012
ISSUED BY R2 TO THE PETITIONERS.
EXHIBIT P5 EXHIBIT P5 : TRUE COPY OF THE REPLY DT.15-11-2013
ISSUED BY THE PETITIONER TO EXHIBIT P4.
EXHIBIT P6 EXHIBIT P6 : TRUE COPY OF THE POSTAL
ACKNOWLEDGMENT CARD EVIDENCING THE RECEIPT OF
EXT.P5 BY THE R2.
EXHIBIT P7 EXHIBIT P7 : TRUE COPY OF THE DEMAND NOTICE DT.24-
12-2013 ISSUED BY R5.
EXHIBIT P8 EXHIBIT P8 : TRUE COPY OF THE OBJECTION DT.16-1-
2014 SUBMITTED BEFORE R5.
EXHIBIT P9 EXHIBIT P9 : TRUE COPY OF THE REPLY DT.28-2-2014
ISSUED BY R5 TO THE PETITIONER.
