Tc One Properties And Project ... vs Tahsildar And Assessing ...
2022 Latest Caselaw 10853 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                       THE HONOURABLE MR. JUSTICE GOPINATH P.

          THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

                              WP(C) NO. 32218 OF 2022

PETITIONERS:

     1         TC ONE PROPERTIES AND PROJECT INDIA PVT. LTD.,
               COMMERCIAL BUILDING,
               TC ONE TOWER, NH BYPASS,
               NEAR METRO CARDIAC HOSPITAL,
               PALAZHI, P.O. GURUVAYOORAPPAN COLLEGE,
               KOZHIKODE
               REPRESENTED BY ITS MANAGING DIRECTOR
               - T.C. AHAMMED
               PIN - 673014
     2         T.C. AHAMMED
               AGED 64 YEARS
               S/O. ABDULLA,
               VILLA NO.1, LESLY VILLAS,
               NEAR HOMEO COLLEGE,
               KARAMPARAMBA P.O,
               KOZHIKODE
               PIN - 673010
               BY ADVS.
               K.I.MAYANKUTTY MATHER
               T.K.SREEKALA
               VINEETH KOMALACHANDRAN


RESPONDENTS:

     1         TAHSILDAR AND ASSESSING AUTHORITY
               TALUK OFFICE, KOZHIKODE P.O.,
               KOZHIKODE
               PIN - 673001
     2         VILLAGE OFFICER
               OLAVANNA VILLAGE,
               OLAVANNA P.O., KOZHIKODE
               , PIN - 673019
               BY ADV GOVERNMENT PLEADER


               ADV. THUSHARA JAMES (SR GP)



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No. 32218 of 2022
                                 ..2..




                             JUDGMENT

Dated this the 3rd day of November, 2022

The petitioners have approached this Court being

aggrieved by Ext.P9 order of assessment under the provisions

of the Kerala Building Tax Act, 1975, imposing on the

petitioners a liability to pay a sum of Rs.44,30,400/- in respect

of a residential apartment building. It is the case of the

petitioners that the petitioners are entitled to the benefit of

Explanation 2 to Section 2(e) of the Kerala Building Tax Act,

1975 and therefore the levy of building tax in respect of the

whole building on the petitioners by Ext.P9 order is illegal and

unsustainable. It is also submitted that Ext.P9 assessment is

issued in printed form without considering any material and

therefore for that reason also Ext.P9 order is liable to be set W.P.(C)No. 32218 of 2022 ..3..

aside. The learned counsel relies on the judgment of the

Supreme Court in CIT, Bhopal v. Shelly Products and

another (2003 KHC 1042), and also the judgment of this

Court in Raghavan Nair v. Asst. Commissioner of Income

Tax, Circle 2(1), Thrissur and another (2018 [2] KHC) to

contend that even if there was a mistake in the return filed by

the petitioners, that cannot be a reason to levy tax on the

petitioners as the same would amount to the levy of tax

without the authority of law which is contrary to the provisions

of Article 265 of the Constitution of India.

2. The learned Senior Government Pleader appearing

for the respondents would point out that Ext.P10 is the return

filed by the petitioners. It is pointed out that in Ext.P10 return

in response to the information sought regarding the owners of

the building, the petitioners had indicated that the 1 st petitioner

was the owner of the building and therefore no fault can be W.P.(C)No. 32218 of 2022 ..4..

found with the Assessing Officer (The Tahsildar, Kozhikode)

for having completed the assessment against the petitioners as

is done in Ext.P9. It is submitted that the petitioners have an

adequate alternative remedy against Ext.P9 and no grounds

have been made out for interference with Ext.P9 in the

exercise of the jurisdiction conferred on this Court under

Article 226 of the Constitution of India.

3. Having heard the learned counsel appearing for the

petitioners and the learned Senior Government Pleader

appearing for the respondents, I am of the opinion that the

petitioners are entitled to succeed on the principles discernible

from the law laid in Shelly Products (Supra) by the Supreme

Court and by this Court in Raghavan Nair (Supra). The mere

fact that the 1st petitioner describe itself as the owner of the

building should not be a ground for the Assessing Officer to

demand building tax from the petitioners alone as if the W.P.(C)No. 32218 of 2022 ..5..

petitioners are the owners of the entire building and they are

liable for the building tax for the entire area. It is also to be

noticed that the assessment order has been issued in printed

form without considering the question as to whether the

petitioners are entitled to the benefit of the Explanation 2 to

Section 2(e) of the Kerala Building Tax Act, 1975. If, as a

matter of fact, the petitioners are entitled to the benefit of the

explanation, the demand now made on the petitioners would be

contrary to the provisions of Article 265 of the Constitution of

India. I also note that a learned Single Judge of this Court in

Saidalavi K.T. v. The District Collector, Malappuram

(judgment dated 25.03.2022 in W.P.(C) No. 10254/2022) has

held as follows in the matter of levy of tax under the

provisions of Kerala Building Tax Act, 1975:-

"7.A perusal of Ext.P3 reveals that the Assessing Officer merely carried out the assessment on the printed format and did not properly apply his mind to W.P.(C)No. 32218 of 2022 ..6..

the various contentions. Neither was a reference to Ext.P1 nor a reply to Ext.P2 or any other contentions available to the petitioner were referred in the impugned order. The order of assessment has been issued without application of mind. The decision in Abraham Thomas v. State of Kerala and others [2012 (2) KHC 792] is squarely applicable to the instant case. Therefore, Ext.P3 is perverse warranting interference by this Court under Article 226 of the Constitution of India."

4. Accordingly, this Writ Petition is allowed. Ext.P9 is

quashed. The matter is remitted to the 1 st respondent for fresh

consideration after taking note of the observations contained in

this judgment. The petitioners shall mark appearance before

the 1st respondent at 11 am on 15.11.2022 along with a copy of

this Writ Petition and a copy of this judgment. The 1 st

respondent shall thereafter complete the assessment against the

petitioners in accordance with law after considering any

materials and documents that have been produced by the W.P.(C)No. 32218 of 2022 ..7..

petitioners. I make it clear that I have not expressed any

opinion on the merits of the matter and that it will be open to

the 1st respondent to complete the assessment, in accordance

with law.

This Writ Petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE RMV

APPENDIX OF WP(C) 32218/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONERS AND SMT. ANUPAMA CHOOTTAPPURATH DATED 07.07.2015 Exhibit P2 TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONERS AND SRI. VIKAS DAMODARAN DATED 22.05.2015 Exhibit P3 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE OLAVANNA GRAMA PANCHAYATH DATED 30.03.2022 Exhibit P4 TRUE COPY OF THE LEDGER FOLIO CONCERNING MR. JUBEESH (7J) DATED NIL.

Exhibit P5 TRUE COPY OF THE LEDGER FOLIO CONCERNING MR. RAJEEV K.P. (7K) DATED NIL Exhibit P6 TRUE COPY OF THE LEGER FOLIO MR. SATISH K.P. AND MRS. SHEEBA SATISH (8F) DATED NIL Exhibit P7 TRUE COPY OF THE SALE DEED - DOC. NO. 2669/2022 OF CHEVAYUR SRO EXECUTED BY THE 1ST PETITIONER IN THE NAME OF ANUPAMA CHOOTTAPRATH DATED 05.08.2022 Exhibit P8 TRUE COPY OF THE SALE DEED - DOC. NO. 2671/2022 OF CHEVAYUR SRO EXECUTED BY THE 1ST PETITIONER IN THE NAME OF VIKAS DAMODHARAN DATED 05.08.2022 Exhibit P9 TRUE COPY OF THE ONETIME BUILDING TAX ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT DATED 02.09.2022 Exhibit P10 TRUE COPY OF THE RETURN FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL Exhibit P11 TRUE READABLE COPY OF EXT.P10

TRUE COPY

P.A.TO JUDGE