Asma v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** ## **WP(C) NO. 23457 OF 2021** ## **PETITIONER:** **ASMA,** **W/O.DR.KPO SULAIMAN,AGED 71 YRS 'JASMINE' PAYYANNUR P.O., THALIPARAMBU TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.C.M.MOHAMMED IQUABAL SRI.P.ABDUL NISHAD ADV.RAIHANATH T.H.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2 THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE DISTRICT COLLECTOR, MALAPPURAM, COLLECTORATE, MALAPPURAM P.O. 676 505.** - **4 THE REVENUE DIVISIONAL OFFICER, TIRUR,TIRUR P.O., MALAPPURAM DISTRICT 676 101.** - **5 THE TAHSILDAR, TIRUR,TIRUR TALUK OFFICE, TIRUR P.O., MALAPPURAM DISTRICT 676 101.** W.P.(C) No.23457/21 **-:2:-** **6 THE VILLAGE OFFICER, THALAKKAD VILLAGE OFFICE, B.P. ANGADI P.O., MALAPPURAM DISTRICT 676 102.** **BY DR.THUSHARA JAMES, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.01.2022, THE COURT ON 25.01.2022 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.23457/21 ## **BECHU KURIAN THOMAS, J. --------------------------------W.P.(C) No.23457 of 2021** ## **---------------------------------** Dated this the 25[th] day of January, 2022 ## **JUDGMENT** Petitioner challenges an order of assessment under the Kerala Building Tax Act, 1975 (for short, ‘the Act') issued against her, imposing an amount of Rs.1,83,600/- as tax due on the building constructed by her in the property situated in Resurvey No.212/1A of Thalakkad Village in Tirur Taluk. 2. The grievance of the petitioner is that she purchased the property along with her husband and son in the year 2011 and even at the time of purchase, a building was in existence on that property. Petitioner contended that the landed property was purchased by her along with the building, which was constructed prior to 1972. While so, in 2017, Ext.P1 order of assessment was served on the petitioner. Being aggrieved by the order of assessment, though petitioner had preferred an appeal after depositing 50% of the amount imposed, unfortunately, the Appellate Authority by Ext.P3 order, dismissed the appeal, without considering any of the contentions raised due to lack of W.P.(C) No.23457/21 **-:4:-** representation on behalf of the petitioner. 3. According to the petitioner, the revision petition preferred under section 13 of the Act, was also dismissed without any proper consideration and it is in such circumstances that, petitioner has approached this Court under Article 226 of the Constitution of India challenging the assessment order as well as the subsequent orders of the statutory authorities in appeal and in revision. 4. I have heard Sri.C.M.Mohammed Iquabal, learned counsel for the petitioner as well as Dr.Thushara James, learned Senior Government Pleader. 5. Sri.C.M.Mohammed Iquabal, learned counsel for the petitioner submitted that Ext.P1 assessment order was issued without hearing the petitioner and in violation of the principles of natural justice. Even when the appeal was considered, petitioner was not heard. It was also contended that from the assessment order till the revisional order, arbitrariness and illegality loomed large on the face of the orders. It was therefore contended that Ext.P1 assessment order itself is liable to be set aside. 6. Learned Senior Government Pleader submitted that the contention of the petitioner is without any basis and that **-:5:-** W.P.(C) No.23457/21 petitioner had not availed the opportunity before the Appellate Authority while the appeal was being considered and further that the revisional authority had considered the contentions of both sides and came to the conclusion that the order of assessment is legally sustainable. Learned Government Pleader asserted that the impugned orders do not warrant any interference. 7. On a consideration of the contentions raised by the petitioner and on a perusal of Ext.P1 assessment order, this Court cannot, but notice the absence of any material in Ext.P1 to indicate an application of mind by the assessing officer. Except for filling up of certain blanks in a printed format stipulated in Form V provided under the corresponding rules, the assessing officer had not independently considered the date of construction of the building, the manner in which he arrived at the figure of Rs.1,83,600/- and the other details required for issuing an order of assessment. 8. An assessment order is the platform from which various rights and obligations of an assessee as well as the State Government will flow. While passing an order of assessment, the officer is bound to apply his mind, which must be evident from the order of assessment itself. From Ext.P1, it is not possible to **-:6:-** W.P.(C) No.23457/21 discern whether a return was filed by the petitioner, whether due to the failure to file a return an enquiry was conducted by the assessing officer or the manner in which the area was calculated to arrive at the figure for imposing the quantum of tax assessed. These ingredients are required to be incorporated into an assessment order under which tax is imposed so that the assessee will be aware of the details on the basis of which an assessment has been issued. No reasons are forthcoming from the order. It is not evident from the assessing order whether the assessee had filed a return or the assessing officer had called for the filing of a return as required by law. Reference can fruitfully be made to the decision in **Tharu v. Tahsildar** (2003 (1) KLT 219). 9. In the instant case, it is not even discernible as to whether the assessing officer had applied his mind since even the alternatives mentioned in the format prescribed, which were not relevant or applicable to the petitioner's case, have not been struck off. The non-striking of the alternatives in the form prescribed itself is indicative of non-application of mind. (See the decision in **Abraham Thomas and Others v. State of Kerala and Others** (2012 (2) KHC 792). In such a view of the matter, W.P.(C) No.23457/21 **-:7:-** notwithstanding the rejection of the appeal as well as the revision, I am of the view that the impugned order of assessment, produced as Ext.P1, cannot stand the scrutiny of law and is ex facie non-speaking and issued without any application of mind. Therefore, this Court is of the considered view that Ext.P1 assessment order is liable to be set aside. 10. Accordingly, while setting aside Ext.P1, petitioner shall be entitled to file a return or an appropriate objection, as contemplated under the statute, within 30 days from the date of receipt of a copy of this judgment. If such an objection is filed, the fifth respondent shall consider the same and pass appropriate orders thereon, within an outer period of three months from the date of receipt of a copy of this judgment. Before the assessment orders are issued as directed above, the petitioner shall be granted an opportunity of hearing. The writ petition is allowed as above. Sd/- ## **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.23457/21 **-:8:-** ## **APPENDIX OF WP(C) 23457/2021** **PETITIONER'S/S' EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ASSESSMENT ORDER OF THE 5TH RESPONDENT DATED 28.7.2017. EXHIBIT P2 THE TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 5TH RESPONDENT DATED 22.8.2017. EXHIBIT P3 THE TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 25.5.2018. EXHIBIT P4 THE TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 10.08.2021. EXHIBIT P5 THE TRUE COPY OF THE REVISION PETITION PREFERRED BEFORE THE 2ND RESPONDENT DATED 30.9.2021.**