Ahmed Thazhe Chalikal v. Tahsildar (Assessing Authority), Taluk Office, Kozhikode

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940 WP(C).No. 12153 of 2018** ## **PETITIONER(S)** **AHMED THAZHE CHALIKAL, AGED 59 YEARS, S/O.ABDULLA, LESLY VILLAS, HOUSE NO.1, KARAPARAMBA P.O., KOZHIKODE DISTRICT.** **BY ADV.SRI.V.M.KRISHNAKUMAR** ## **RESPONDENT(S):** **TAHSILDAR, (ASSESSING AUTHORITY), TALUK OFFICE, KOZHIKKODE, PIN-673020.** **BY GOVERNMENT PLEADER SMT.M.M.JASMINE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 12153 of 2018 (T)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 30-12-2010. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 27-09-2017 ISSUED BY 1ST RESPONDENT. EXHIBIT P3 PHOTOGRAPH SHOWING THE TRUSS WORK DONE BY THE PETITIONER IN THE TERRACE OF BUILDING. EXHIBIT P3(A) PHOTOGRAPH SHOWING THE TRUSS WORK DONE IN ENTRANCE PORTION OF THE BUILDING. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 06-11-2017 SUBMITTED BY THE PETITIONER. EXHIBIT P4(A) TRUE COPY OF THE RECEIPT DATED 8-11-2017 ISSUED TO THE PETITIONER.** **( true copy )** _**Sd/-**_ **PS TO JUDGE** _**Kvs/-**_ ## **P.B.SURESH KUMAR, J.** **= = = = = = = = = = = = = =** **W.P.(C).No.12153 of 2018-T.** **= = = = = = = = = = = = = =** **Dated this the 22nd day of May, 2018** ## **J U D G M E N T** Petitioner is the owner of a commercial building. The case of the petitioner is that the said building was assessed to tax under the Kerala Building Tax Act (the Act) on completion of its construction. Ext.P1 is the assessment order issued by the competent authority under the Act in this regard. In terms of Ext.P1 order, the petitioner was called upon to pay a sum of Rs.11,94,163/- and the petitioner has paid the said tax. Later, the petitioner leased out the building and the building is presently occupied by the lessee of the petitioner. It is stated by the petitioner that in respect of the same building he is now called upon to pay a further sum of Rs.13,34,837/- towards tax under the Act on the ground that the petitioner has carried out some WPC.No.12153 of 2018 2 additional constructions in the building. Ext.P2 is the order of assessment issued by the assessing authority under the Act in this connection. According to the petitioner, he has not made any additional constructions in the building and that the additional demand is made based on the tress work made on the building by the lessee. It is stated by the petitioner that there cannot be any assessment in respect of the open tress work made by the lessee on the building. Ext.P2 order of assessment is, therefore, under challenge in the writ petition on that ground. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The learned Government Pleader contends that the writ petition is not maintainable as the petitioner has a right royal remedy by way of appeal under the statute against Ext.P2 order of assessment. 4. The learned counsel for the petitioner points out that in the light of sub-rule (3) of Rule 9 of the Kerala WPC.No.12153 of 2018 3 Building Tax (Plinth Area) Rules, 1982 (the Rules), the assessing authority under the Act is expected to indicate in the order the basis of the assessment. According to the learned counsel, in so far as no reason whatsoever is stated in Ext.P2 order, the same is an order vitiated for noncompliance of the principles of natural justice. According to the learned counsel, in so far as the order is vitiated for non-compliance of the principles of natural justice, the alternate remedy available to the petitioner against Ext.P2 order does not preclude the petitioner from approaching this Court under Article 226 of the Constitution of India. 5. Rule 9 of the Kerala Building Tax (Plinth Area) Rules, 1992 (the Rules) reads thus: _“(1) The assessment order of building tax/luxury tax under Section 9 shall be in Form V._ _(2) The order of assessment shall be served on the assessee as soon as the order is passed and a copy of the order shall be communicated to the concerned Village Officer also._ _(3) The order of assessment shall specify the basis of assessment, the amount of tax payable, the_ WPC.No.12153 of 2018 4 _amount payable in instalments, the last date of payment of each instalment etc.”_ It is evident from sub-rule (3) of Rule 9 of the Rules extracted above that an order of assessment issued under the Act shall specify the basis of assessment. Further, in _**Abraham Thomas and other v. State of Kerala and others**_ (2012(2) KHC 792), this Court has held that even otherwise, the order of assessment under the Act shall be supported by reasons and if the orders are not supported by reasons, the same would be vitiated for non-compliance of principles of natural justice. Paragraph 4 of the said judgment reads thus: _“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_ WPC.No.12153 of 2018 5 _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 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 2nd 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.”_ In the light of sub-rule (3) of Rule 9 of the Rules and the decision of this Court in _**Abraham Thomas**_ (supra), the impugned order is liable to be set aside as the same does not contain any reason on the basis of which the petitioner is called upon to pay a huge sum of Rs.13,34,837/- towards building tax. In the result, the writ petition is allowed, Ext.P2 order is quashed and the second respondent is directed to WPC.No.12153 of 2018 6 pass fresh orders, after affording the petitioner an opportunity of hearing. _**Sd/-**_ **P.B.SURESH KUMAR,** **JUDGE.** _**Kvs/-**_ _**// true copy //**_ _**PS TO JUDGE**_