Joys P.Stephen vs State Of Kerala
2022 Latest Caselaw 7147 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
         THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                          WP(C) NO. 7899 OF 2022
PETITIONER/S:

             JOYS P.STEPHEN
             AGED 65 YEARS
             S/O STEPHEN, PULIMOOTTIL HOUSE, THODUPUZHA P.O.,IDUKKI
             DISTRICT, PIN-685 584

             BY ADVS.
             P.B.KRISHNAN
             P.B.SUBRAMANYAN
             SABU GEORGE
             MANU VYASAN PETER



RESPONDENT/S:

     1       STATE OF KERALA
             REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE
             DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

     2       THE TAHSILDAR,
             TALUK OFFICE, THODUPUZHA TALUK, THODUPUZHA, IDUKKI
             DISTRICT, PIN-685 584.

     3       THE VILLAGE OFFICER,
             THODUPUZHA , VILLAGE OFFICE, THODUPUZHA P.O.,IDUKKI
             DISTRICT, PIN-685 584




OTHER PRESENT:

             DR. THUSHARA JAMES (SR. GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C).7899/22                          2




                                   JUDGMENT

Petitioner has approached this Court challenging Ext.P11 order of

assessment under the Kerala Building Tax Act, 1975.

2. The learned counsel for the petitioner submits that the buildings of

the petitioner were already assessed to tax under Exts.P1, P4 and P7 and the

amounts assessed have been duly remitted. It is submitted that thereafter, the

petitioner was issued with a notice pointing out that certain additional

constructions have been made and the measurement of the buildings now differ

with the area for which the assessment was completed in terms of Exts.P1, P4 and

P7. The learned counsel for the petitioner submits that though the petitioner was

directed to appear for hearing on a specific date, the officer concerned did not

hear the petitioner and only accepted the written submission of the petitioner. It

is also submitted that the demand now raised is in respect of a building for which

tax has already been assessed and paid and therefore, the assessment and demand

are completely illegal.

3. The learned Government Pleader submits that in respect of one

assessment in the year 2013 there was an audit objection and a fresh

measurement was carried out, which showed that there were additional areas and

this was the reason why a fresh assessment had to be completed. It is submitted

that thereafter a joint inspection was conducted with notice to the petitioner,

which showed yet another area as being the area of the building in question. She

submits that if the petitioner has any dispute regarding the measurement, it is for

the petitioner to approach the Appellate Authority and not this Court under

Article 226 of the Constitution of India as disputed questions of facts are involved.

The learned Government Pleader also submits, the contention of the petitioner

that he was not heard is absolutely incorrect as the officer had afforded an

opportunity of hearing to the petitioner.

4. The learned counsel appearing for the petitioner would point out that

there cannot be a fresh assessment as the period for rectification of the earlier

assessment under the statute has already expired. It is submitted that this is a

point which has to be considered by the authorities, while deciding whether any

further demand for tax can be made. It is also pointed out that the so-called

additional area is a workshop which is exempted from levy of tax under the

provisions of the Kerala Building Tax Act.

5. Having regard to the facts and circumstances of the case and

considering the nature of contentions raised, I am of the opinion that this matter

can be remanded to the 2nd respondent for re-determining the matter, after

affording an opportunity of hearing to the petitioner. The availability of an

alternative remedy need not necessarily mean that this Court would decline relief

even where it is shown that the petitioner has raised certain points which require

consideration at the hands of the original authority. Therefore, making it clear

that I have not expressed any opinion under the merits of the matter, Ext.P7 will

stand set aside and the matter will stand remanded to the 2 nd respondent for re-

determining the matter after affording an opportunity of hearing to the petitioner.

Let the needful be done within a period of two months from the date of receipt of a

certified copy of this judgment. The petitioner shall appear before the 2 nd

respondent on 01.07.2022 and thereafter the matter shall be considered and

disposed of as above. Considering the nature of the contentions raised by the

petitioner including the contention that the period for rectification of the earlier

assessment has already expired, it will be appropriate that the 2 nd respondent

passes a speaking order instead of passing an order in printed form.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE okb/23.6.22 //True copy// PS to Judge

APPENDIX OF WP(C) 7899/2022 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER NO C1/3093/2013 DATED 4.3.2013 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P2 TRUE COPY OF THE NOTICE OF DEMAND DATED 4.3.2013 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P3 TRUE COPY OF THE TAX RECEIPT NO 4600312 DATED 20.3.2013 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P3(A) TRUE COPY OF THE TAX RECEIPT NO 4581553 DATED 21.6.2013 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P3(b) TRUE COPY OF THE TAX RECEIPT NO 4556644 DATED 27.9.2013 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P3(C) TRUE COPY OF THE TAX RECEIPT NO 5995295 DATED 31.12.2013 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P4 TRUE COPY OF THE ASSESSMENT ORDER NO C5-

10739/14 DATED 15.12.2014 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P5 TRUE COPY OF THE NOTICE OF DEMAND DATED 15.12.2014 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P6 TRUE COPY OF THE TAX RECEIPT NO 4104168 DATED 29.12.2014 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P6(A) TRUE COPY OF THE TAX RECEIPT NO 4155638 DATED 3.3.2015 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P6(B) TRUE COPY OF THE TAX RECEIPT NO 4165362 DATED 29.4.2015 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P6(C) TRUE COPY OF THE TAX RECEIPT NO 4186181 DATED 8.6.2015 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P7 TRUE COPY OF THE ASSESSMENT ORDER NO C5/1711/2020 DATED 13.8.2020 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P8 TRUE COPY OF THE TAX RECEIPT NO KL06040607747/2020 DATED 26.8.2020 ISSUED BY THE VILLAGE OFFICER, THODUPUZHA

Exhibit P9 TRUE COPY OF THE NOTICE NO C5-3397/2018 DATED 27.12.2021 ISSUED BY THE TAHSILDAR, THODUPUZHA

Exhibit P10 TRUE COPY OF THE LETTER DATED 17.1.2022 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO 2

Exhibit P11 TRUE COPY OF THE ASSESSMENT ORDER CUM DEMAND NOTICE DATED 8.2.2022 SERVED ON THE PETITIONER ON 18.2.2022 BY THE RESPONDENT NO 2

Exhibit P12 TRUE COPY OF THE LETTER DATED 21.2.2022 SENT BY THE PETITIONER TO RESPONDENT NO 2

Exhibit P13 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 21.2.2022 ISSUED BY THE OFFICE OF THE RESPONDENT NO 2