High Court of KeralaSingle Judge2011-08-29Writ allowed in part; Ext.P41 assessment order ...

Abraham Thomas and others v. State of Kerala and others

Case / Petition Number:W.P.(C).No.23118/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
Judgment Date: 2011-08-29
Court Decision / Holding: Ext.P41 assessment order and Ext.P42 demand notice are quashed. The assessing authority is directed to pass fresh assessment orders in accordance with the observations in this judgment and the cited decisions, after considering the petitioners’ documents and contentions with an opportunity of hearing.
Final Disposition: Writ allowed in part; Ext.P41 assessment order and Ext.P42 demand quashed; fresh assessment orders to be passed with reasons after hearing

Parties to the Case

Appellants / Petitioners

Abraham Thomas
Kuncheria Thomas
George Thomas
Tom Thomas
Rani Abraham
Reena Kuncheria
Tessy George
Zeenia Thomas

Respondents

State of Kerala represented by the Secretary, Revenue Department, Secretariat, Thiruvananthapuram
Tahsildar, Assessing Authority (Building Tax), Kanayannur Taluk, Ernakulam
Village Officer, Edappally South Village, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shaji P. Chaly
• Sri. S. Gopakumar
• Sri. R. Sanjith

Counsels for Respondents

• Sri. C.K. Govindan

Case Synopsis & Summary

This writ petition arises from eight co‑owners of an apartment complex who claim to be joint owners of the property on which the building was constructed and who, by an agreement, contributed their shares for constructing separate portions. They contend that the separate portions should be assessed for building tax under the Kerala Building Tax Act on their individual shares, rather than as a single building. Ext.P41, an assessment order, assesses the entire apartment complex as one building, with Ext.P42 demanding tax, despite their contentions. The petitioners have produced documents (partition‑cum‑construction agreement, building plans, occupancy certificates, and multiple building tax receipts) to prove that each petitioner’s share corresponds to a separate portion of the project, not a single consolidated unit. They submit that Ext.P41 contains only printed entries of names, area, and tax amount and does not disclose the method of assessment or give any reasons; it is silent on why their contentions were not accepted. They rely on decisions of this Court stating that assessment orders must contain reasons and reflect the contentions of parties; lack of reasons constitutes violation of natural justice and indicates non‑application of mind. The Government Pleader asserts that Ext.P41 was issued after considering all contentions. The court agrees with the petitioners that the order is defective for lack of reasons and a mechanical form cannot substitute for a reasoned statement of mind. Consequently, Ext.P41 and Ext.P42 are quashed, and the assessing authority is directed to pass fresh, reasoned orders after hearing, in light of the discussed decisions.

Provisions of Law Cited

Kerala Building Tax Act

Legal Doctrines & Maxims

Principles of natural justice
Non-mechanical administration of statutes
Application of mind in assessment orders
Reasons must be stated in quasi-judicial orders

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the assessment of the entire apartment complex as a single building under Ext.P41, with Ext.P42 demand, disregards their separate ownership shares and the agreement under which they contributed to construction. They produced documents showing partition‑cum‑construction agreements, building plans, occupancy certificates, and multiple building tax receipts to prove separate shares. The Ext.P41 form contains only printed entries of names, area, and tax amount and does not disclose the method of assessment or give any reasons; it is silent on why their contentions were not accepted. They rely on decisions of this Court stating that assessment orders must contain specific reasons and reflect the contentions of parties; lack of reasons constitutes violation of natural justice and indicates non‑application of mind. They rely on decisions of this Court requiring reasons in assessment orders when objections are filed; absence of reasons constitutes violation of natural justice and indicates non‑application of mind. They seek quashing of Ext.P41 and Ext.P42 and a direction for fresh, reasoned orders after hearing.

Contentions of Respondents

The Government Pleader contends that Ext.P41 was issued after considering all contentions; the order, albeit in a printed form, reflects consideration of issues and should not be seen as a failure of natural justice. The respondents contend for deference to the statutory scheme and submission that the court should not compel a particular form of order.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Tharu v. Tahsildar	2003 (1) KLT 219	Positive	Cited to support the proposition that assessment orders should contain specific reasons when objections are filed; justifies requirement of reasons.
Bavasons Constructions (P) Ltd v. State of Kerala	2007 (3) KLT 101	Positive	Recognizes that the assessing authority must provide reasons and not be mechanical; endorses reasoned orders.
District Collector v. Sreekumari Kunjamma	2011 (1) KLT 248 (F.B.)	Positive	Full Bench decision reinforcing requirement of reasons and proper application of mind in assessment orders.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Abraham Thomas and others v. State of Kerala and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933** **WP(C).No. 23118 of 2011(L)** **---------------------------------** **PETITIONER(S):** - **-------------------** **1. ABRAHAM THOMAS, S/O.N.J.THOMAS, ETTUPARAYIL HOUSE, 121/12,KAVUMPADY, MUVATTUPUZHA.** **2. KUNCHERIA THOMAS, S/O.N.J.THOMAS, ETTUPARAYIL HOUSE,VENNALA P.O.,ERNAKULAM.** **3. GEORGE THOMAS, 33/226B, VAYANASALA ROAD, VYTILA P.O., ERNAKULAM.** **4. TOM THOMAS, S/O.N.J.THOMAS, 36/896, M.G.ROAD,ERNAKULAM.** **5. RANI ABRAHAM, ETTUPARAYIL HOUSE,121/12, KAVUMPADY,MUVATTUPUZHA.** **6. REENA KUNCHERIA, ETTUPARAYIL HOUSE, VENNALA P.O., ERNAKULAM** **7. TESSY GEORGE, W/O.GEORGE THOMAS, 33/266 B, VAYANASALA RAOD,VYTTILA, ERNAKULAM.** **8. ZEENIA THOMAS, W/O.TOM THOMAS, 36/896, M.G.ROAD,ERNAKULAM.** - **BY ADVS. SRI.SHAJI P.CHALY SRI.S.GOPAKUMAR** **SRI.R.SANJITH** **svs** **.........2/-....** **...2....** ## **WPC. NO.23118/2011** ## **RESPONDENT(S):** - **---------------------** **1. STATE OF KERALA,REPRESENTED BY THE SECRETARY REVENUE DEPARTMENT, SECRETRIAT,THIRUVANANTHAPURAM-1.** **2. TAHSILDAR, ASSESSING AUTHORITY (BUILDING TAX), KANAYANNUR TALUK, ERNAKULAM-682 011.** **3. VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE, ERNAKULAM-682 024.** **BY GOVT.PLEADER SRI.C.K.GOVINDAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 23118/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE DOCUMENT BEARING NO.3253/01.** **P1(a):COPY OF THE LATEST TAX PAID RECEIPT DATED 16/09/2010.** - **P2: COPY OF THE DOCUMENT BEARING NO.3343/01.** - **P2(a):COPY OF THE LATEST TAX PAID RECEIPT DATED 16/09/2010.** - **P3: COPY OF THE SAID PARTITION CUM CONSTRUCTION AGREEMENT DATED 13/09/2002.** - **P4: COPY OF THE APPROVED BUILDING PLAN.** - **P5: COPY OF THE BUILDING PERMIT BEARING NO.EYP1 - 58/04 DATED 25/02/2004.** - **P6: COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY KOCHI CORPORATION DATED 29/06/2005.** - **P7: COPY OF THE BUILDING TAX RECEIPT DATED 20/09/2010 CONCERNING 1ST PETITIONER'S SHARE.** - **P8: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011.** - **P9: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 3RD PETITIONER'S SHARE.** - **P10: COPY OF THE BUILDING TAX RECEIPT DATED 26/02/2011 CONCERNING 4TH PETITIONER'S SHARE.** - **P11: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 5TH PETITIONER'S SHARE.** - **P12: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 6TH PETITIONER'S SHARE.** - **P13: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 7TH PETITIONER'S SHARE.** - **P14: COPY OF THE BUILDING TAX RECEIPT DATED 23/03/2011 CONCERNING 8TH PETITIONER'S SHARE.** **svs** **........2/-....** **...2...** ## **WPC. NO.23118/2011** - **P15: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 1ST PETITIONER DATED 26/07/2005.** - **P16: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 2ND PETITIONER DATED 26/07/2005.** - **P17: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 3RD PETITIONER DATED 26/07/2005.** - **P18: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 4TH PETITIONER DATED 26/07/2005.** - **P19: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 5TH PETITIONER DATED 26/07/2005.** - **P20: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 6TH PETITIONER DATED 26/07/2005.** - **P21: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 7TH PETITIONER DATED 26/07/2005.** - **P22: COPY OF THE SECURITY DEPOSIT RECEIPT ISSUED BY THE KSEB TO THE 8TH PETITIONER DATED 26/07/2005.** - **P23: COPY OF THE RETURN SUBMITTED BY THE 1ST PETITIONER REGARDING COMPLETION OF BUILDING.** - **P24: COPY OF THE RETURN SUBMITTED BY THE 2ND PETITIONER REGARDING COMPLETION OF BUILDING.** - **P25: COPY OF THE RETURN SUBMITTED BY THE 3RD PETITIONER REGARDING COMPLETION OF BUILDING.** - **P26: COPY OF THE RETURN SUBMITTED BY THE 4TH PETITIONER REGARDING COMPLETION OF BUILDING.** - **P27: COPY OF THE RETURN SUBMITTED BY THE 5TH PETITIONER REGARDING COMPLETION OF BUILDING.** - **P28: COPY OF THE RETURN SUBMITTED BY THE 6TH PETITIONER REGARDING COMPLETION OF BUILDING.** - **P29: COPY OF THE RETURN SUBMITTED BY THE 7TH PETITIONER REGARDING COMPLETION OF BUILDING.** - **P30: COPY OF THE RETURN SUBMITTED BY THE 8TH PETITIONER REGARDING COMPLETION OF BUILDING.** **svs** **.......3/-...** **...3...** ## **WPC. NO.23118/2011** - **P31: COPY OF THE AFFIDAVIT SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P32: COPY OF THE AFFIDAVIT SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P33: COPY OF THE AFFIDAVIT SUBMITTED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P34: COPY OF THE AFFIDAVIT SUBMITTED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P35: COPY OF THE AFFIDAVIT SUBMITTED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P36: COPY OF THE AFFIDAVIT SUBMITTED BY THE 6TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P37: COPY OF THE AFFIDAVIT SUBMITTED BY THE 7TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P38: COPY OF THE AFFIDAVIT SUBMITTED BY THE 8TH PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/01/2011.** - **P39: COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT DATED 14/01/2011** - **P40: COPY OF THE DAY BOOK AND LEDGER ACCOUNTS MAINTAINED BY THE PETITIONERS WITH REGARD TO CONSTRUCTION.** - **P41: COPY OF THE ORDER OF ASSESSMENT PASSED BY THE 2ND RESPONDENT DATED 11/07/2011.** - **P42: COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED 11/07/2011.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.23118 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of August, 2011** ## **J U D G M E N T** The petitioners are owners of separate portions of an apartment complex. According to them, they are joint owners of the property on which the apartment complex has been constructed and as per an agreement among them, they have decided to contribute their shares for construction of separate portions of the apartment complex. Therefore, according to them, the separate portions owned by each of them is liable to be assessed for building tax under the Kerala Building Tax Act, separately. But instead, by Ext.P41 order, the entire apartment complex has been assessed as one building and Ext.P42 demand notice has also been issued. The petitioners contend that the assessment order does not contain any reference to their contentions. They have also produced documents to prove their contentions that the separate portions of the apartment complex owned by each of them were ## W.P.(C)No.23118 of 2011 **-2-** constructed as per an agreement pursuant to which each of them contributed their shares for construction of the portions owned by them separately. According to the petitioners, none of these documents or the contentions of the petitioners have been considered by the assessing authority in Ext.P41 assessment order. They point out that except the names of the petitioners, the area and the amount of tax, the assessment order does not contain any reason whatsoever or the method of assessment even. The petitioners rely on the following decisions of this Court, wherein, this Court has specifically stated that the assessment orders should contain specific reasons especially when objections are filed: Tharu v. Tahsildar [2003 (1) KLT 219], Bavasons Constructions (P) Ltd v. State of Kerala [2007 (3) KLT 101], District Collector v. Sreekumari Kunjamma [2011 (1) KLT 248 (F.B.)] 2. I have heard the learned Government Pleader who would contend that Ext.P41 assessment order has been W.P.(C)No.23118 of 2011 **-3-** passed after considering all the contentions of the parties. 3. I have considered the rival contentions in detail. 4. As rightly pointed out by the counsel for the petitioners, Ext.P41 assessment order contains only some printed sentences wherein the names of the petitioners, the area and the amount of the tax only have been filled up. There is absolutely no reason stated therein. It also does not disclose the method of assessment. I am also of opinion that, passing of assessment orders under the Kerala Building Tax Act cannot be a mechanical process. The assessing authority should apply his mind to the contentions of the parties and the assessing order on the face of the same should disclose such application of mind giving reasons for the same. In Ext.P41 printed form of order the assessing authority has not even scored off the portions which are not applicable to the petitioners, which itself shows total non-application of mind. I have in one decision held that while passing assessment orders under the Kerala Building Tax Act, the assessing authority should not ## W.P.(C)No.23118 of 2011 **-4-** mechanically follow the form of assessment order prescribed in the rules. If there is no space provided for giving reasons in the printed form, the reasons should be appended to the assessment order in a separate sheet. In view of the fact that Ext.P41 assessment order does not contain any reasons whatsoever, I am of opinion that, it amounts to violation of principles of natural justice. Accordingly, Ext.P41 assessment order and Ext.P42 demand notice pursuant to the same are quashed. The assessing authority, namely the 2[nd] respondent herein, is directed to pass fresh assessment orders in accordance with the observations contained herein as well as the principles in the decisions of this Court referred to above, expeditiously, after considering the documents produced by the petitioners and their contentions with an opportunity of being heard to them. Sd/- S. SIRI JAGAN JUDGE //True copy// shg/ P.A. TO JUDGE