Kerala High Court
P.P.Shoukathali vs Assessment Officer on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
WP(C) NO. 20636 OF 2020
PETITIONER:
P.P.SHOUKATHALI
AGED 62 YEARS, S/O.MOHAMMED,
RESMA MANZIL,
MULLAMPARA KOLLARKUNNU, MANJERI P.O.,
MALAPPURAM, KERALA-676121.
BY ADVS.
SAIJO HASSAN
SRI.RAFEEK. V.K.
SRI.BENOJ C AUGUSTIN
SMT.SURYA P SHAJI
SHRI.MANAS P HAMEED
RESPONDENTS:
1 ASSESSMENT OFFICER
AUTHORISED UNDER BUILDING AND OTHER CONSTRUCTION
WORKERS WELFARE CESS ACT 1996,
OFFICE OF DEPUTY LABOUR OFFICER,
CIVIL STATION, DOWNHILL P.O.,
MALAPPURAM-676519.
*2 MANJERI MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
MANJERI P.O., MALAPPURAM - 676121
ADDL.R2 IS IMPLEADED AS PER ORDER DAED 04.11.2020
IN IA NO.1/2020 IN W.P.(C) NO.20636/2020
BY ADVS.
SHRI.R.RANJITH (MANJERI), SC, MANJERI
MUNICIPALITY
SRI.JUSTINE JACOB, SR.GOVERNMENT PLEADER
W.P.(C) No.20636/20 -:2:-
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.20636/20 -:3:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.20636 of 2020
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Dated this the 8th day of September, 2021
JUDGMENT
Petitioner challenges Ext.P2 assessment notice issued by the
1st respondent under the Kerala Building and Other Construction
Workers Welfare Cess Act, 1996, ('the Act' for brevity). Ext.P2
directs petitioner to appear and show cause as to why an amount of
Rs.1,38,570/- ought not to be imposed upon him as cess due under
the Act on account of the construction of a building by the petitioner
having a plinth area of 909.55 sq.m.
2. Petitioner contends that the building was constructed by him
in 1994 and that he has been paying the building tax for the said
building from 1994 itself, as is evident from Ext.P3. It is urged that
since the Act came into force only on 03.11.1995, there cannot be a
post facto application of the Act.
3. 1st respondent has filed a statement pointing out that Ext.P2
is only a notice issued to the petitioner requiring him to show cause
and also that in spite of several notices issued, which are produced
as Ext.R1(a), Ext.R1(b) and Ext.R1(e), for carrying out the
assessment, petitioner never appeared and that the notices were
returned with the endorsement 'not known'. It is also stated that even
though the petitioner has stated in the writ petition that the building
was constructed in 1994, no documents were produced to show that
the building was constructed prior to the coming into force of the Act.
It is in such circumstances that Ext.P2 was issued.
4. I have heard the learned counsel for the petitioner,
Adv.Rafeek V.K., as well as the learned Senior Government Pleader,
Adv.Justin Jacob, on behalf of the respondents.
5. The Act came into force on 3.11.1995. From that date
onwards the cess due under the Act is applicable for all
constructions. The contention of the petitioner that the building was
constructed prior to the coming into force of the Act, if correct, can be
proved by producing the documents relating to the construction of the
building such as completion certificate, occupation certificate,
assessment under the Building Tax Act and such other documents.
The list of documents that could be available with the petitioner are
manifold. Unfortunately except Ext.P3, no other documents have
been produced by the petitioner to show that the construction of the
building was completed prior to 3.11.1995. Even that document was
not produced before the assessing authority.
6. When a person is called upon to show cause as to why the
cess under the Act ought not to be imposed, the burden is cast upon
such person to prove that the construction in question does not come
within the purview of the Act. It is only appropriate, having regard to
the nature of the notice issued as Ext.P2, that petitioner approaches
the assessing officer with the required documents and base his claim
on the basis of the contentions that can be raised by him. It is
apposite to mention that the decision in W.P.(C) No.14348 of 2012
produced as Ext.P4 revolved around the facts of the case and even
in that case, the assessment order was set aside to enable the
assessee to prove his claim that the building was constructed prior to
the coming into force of the Act.
7. Sine Ext.P2 is only a notice, this Court is of the view that the
petitioner ought to be given an opportunity for justifying his claim for
exemption under the Act and the petitioner be granted an opportunity
to prove the same.
8. Accordingly, the writ petition is disposed of, directing the
petitioner to submit an objection to Ext.P2 within four weeks from the
date of receipt of a copy of this judgment. If the objection as directed
above is filed by the petitioner, the respondent shall accept the same
and take a decision pursuant to Ext.P2, after giving an opportunity of
hearing to the petitioner. The proceedings pursuant to Ext.P2, as
directed above, shall be completed within an outer period of six
months from the date of receipt of a copy of this judgment.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 20636/2020
PETITIONER EXHIBITS
EXHIBIT P1 NIL
EXHIBIT P1(a) TRUE COPY OF THE LAND TAX RECEIPT.
EXHIBIT P1(b) TRUE COPY OF THE BUILDING TAX RECEIPT
DATED 26.03.2013.
EXHIBIT P1(c) TRUE COPY OF THE BUILDING TAX RECEIPT
DATED 12.05.2020.
EXHIBIT P2 TRUE COPY OF NOTICE DATED 13.08.2020
ISSUED BY THE RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED
13.04.2010 ISSUED BY THE SECRETARY,
MANJERI MUNICIPALITY.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
02.06.2014 IN W.P.(C)NO.14348/2012 OF
THIS HON'BLE COURT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 09/10/2020
SUBMITTED BY THE PETITIONER TO THE
RESPONDENT
RESPONDENT'S/S' EXHIBITS
ANNEXURE R1(a) TRUE COPY OF THE NOTICE NO.B2-4398/11
DATED 10.11.2011
ANNEXURE R1(b) TRUE COPY OF THE NOTICE NO.B2-4398/11
DATED 14.12.2011
ANNEXURE R1(c) TRUE COPY OF THE ENDORSEMENT
ANNEXURE R1(d) TRUE COPY OF G.O. NO.52/2017 DATED
14.7.2017
ANNEXURE R1(e) TRUE COPY OF NOTICE B2-4398/11 DATED
13.08.2020
ANNEXURE R1(f) TRUE COPY OF ACKNOWLEDGEMENT CARD
