Herald Marine Products Pvt. Ltd. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943 ``` ## **`WP(C) NO. 1150 OF 2022`** ## **`PETITIONER:`** ``` HERALD MARINE PRODUCTS PVT. LTD., KADACHIPARA GOVINDAPURAM POST, CHITTUR TALUK, PALAKKAD DISTRICT 678 507, REP. BY THE ADMINISTRATION IN CHARGE, SANTHOSH A. ``` ``` BY ADVS. SAJAN VARGHEESE K. LIJU. M.P JOPHY POTHEN KANDANKARY ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 01.`** - **`2 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 01.`** - **`3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 01.`** - **`4 THE SUB COLLECTOR, PALAKKAD 01.`** - **`5 THE TAHASILDAR, CHITTUR TALUK, PALAKKAD DISTRICT 678 101.`** - **`6 THE VILLAGE OFFICER, MUTHALAMAD I VILLAGE, MUTHALAMAD POST, CHITTUR TALUK, PALAKKAD DISTRICT 678 507.`** - **`7 THE CHIEF SECRETARY, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.`** - **`8 (ADDL.R8.) THE DISTRICT COLLECTOR CIVIL STATIONN, PALAKKAD-678001`** ``` WP(C) NO. 1150 OF 2022 ``` ``` 2 ``` ## **BY ADV. JASMINE M.M. - GP** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1150 OF 2022 ``` ``` 3 ``` ## BECHU KURIAN THOMAS, J. =========================== W.P.(C) No.1150 of 2022 ============================ Dated this the 10th day of February, 2022 ## JUDGMENT The petitioner had constructed a building allegedly as a factory. After completion of construction of the building, even though, respondents had issued a notice under the Building Tax Act, 1971, (for short, the Act), petitioner failed to respond and hence, an order of assessment was issued imposing building tax upon the petitioner for an amount of Rs.11,34,000/- (Rupees eleven lakhs thirty four thousand only). Challenging assessment, petitioner approached the Appellate authority. However, by order dated 16.09.2021, the appeal was rejected. 2. After the rejection of the appeal, petitioner realised that the building constructed by the petitioner is a factory building, ``` WP(C) NO. 1150 OF 2022 ``` ``` 4 ``` entitled to exemption, as provided in Section 3(1)(b) of the Act. Since the petitioner had not claimed the benefit of exemption, none of the statutory authorities had considered the same. 3. Pointing out the anomaly in the assessment order as well as the appellate order, with regard to non-consideration of the nature of the building, petitioner has approached this Court. During the pendency of this writ petition, a revision petition was preferred before the District Collector, copy of which is additional Ext.P19. A perusal of Ext.P19 shows that petitioner has now, though belatedly, raised the contention that the building is liable to be exempted from the provisions of the Act, since the building, according to the petitioner, is a factory. 4. In the Full Bench judgment of this Court reported in Aswirathul Musthaqeen Sangham, Pengattu Kundu v. State of Kerala and others [2019 (1) KHC 312], this Court had held that, even during the pendency of the appellate proceedings, the assessee can raise the claim for exemption, despite it having not ``` WP(C) NO. 1150 OF 2022 ``` ``` 5 ``` been raised before the original assessing authority. 5. The aforesaid decision related to a case of raising the claim in appeal. In the instant case, there is a subtle distinction, as even at the appellate stage, the claim for exemption was not raised. In the aforesaid decision, it was observed that an appeal is a continuation of the original proceeding and hence the claim of exemption can be raised even at the appellate stage. The question in this writ petition is whether the said principle can be extended even to the revisional stage of the proceedings. 6. The word revise means to re-examine and correct, or to look at it again. Revision is a process or act of examining again in order to remove any defect or grant relief against the irregular or improper exercise or non-exercise of jurisdiction by a subordinate authority. (See Advanced Law Lexicon by P. Ramanatha Iyer, Volume 4, 4th Edition) an 7. Though a revisional jurisdiction is different from appellate jurisdiction, the nature of power is to be discerned from ``` WP(C) NO. 1150 OF 2022 ``` ``` 6 ``` the words employed in the statute. Section 13 of the Act deals with the powers of revision and the abstract of the said provision reads as below: “S.13(1) The District Collector may, either suo motu or on application by any person aggrieved, call for and examine the record of any order passed by the appellate authority or the assessing authority and may pass such order in reference thereto as he thinks fit:” 8. From a reading of the above statutory provision, it can be understood that, unlike many other statutes, the revisional power under the Act is wide. The power to revise is not circumscribed by any limitation other than those like the time for appeal has not expired or the appeal is pending. In the absence of any specific limitations on the power of revision as provided in the statute, the assessee is not precluded from raising a claim for exemption, even at the revisional stage of Section 13 of the Act. The statutory intendment is to grant exemption to certain categories of buildings based on their usage. If the petitioner bonafide omitted to raise ``` WP(C) NO. 1150 OF 2022 ``` ``` 7 ``` the claim for exemption initially, but before the proceedings under the Act are completed, the claim is put forth, I do not see any reason why such a claim should not be considered. 9. In view of the above discussion I hold that the principles laid down in the decision in Aswirathul Musthaqeen Sangham, Pengattu Kundu v. State of Kerala and others [2019 (1) KHC 312], . can apply to the revisional stage also 10. In the instant case, petitioner had failed to raise a claim for exemption at the assessment stage as well as the appellate stage. However, at the belated stage, before the revisional authority, claim for exemption has been raised. Petitioner had also relied upon various documents to substantiate his claim for exemption as a factory including registration under the Factories Act, NOC from the Pollution Control Board, a license under the Panchayat Raj Act, etc. 11. Having heard the arguments of Adv. Sajan Vargheese.K, learned counsel for the petitioner, as well as the learned ``` WP(C) NO. 1150 OF 2022 ``` ``` 8 ``` Government Pleader, Smt. M.M.Jasmin, I am of the view that this writ petition can be disposed of, directing the revision petition pending before the additional 8[th] respondent, to be considered and appropriate orders thereon be issued, in a time bound manner. While considering the revision petition, preferred as Ext.P19 before the additional 8[th] respondent, the said authority shall consider the claim for exemption raised by the petitioner. It is needless to mention that once the claim for exemption is raised by an assessee, the assessing authority is bound to refer the same for consideration to the Government for appropriate decision. 12. Bearing in mind, the aforesaid principles, the revisional authority shall consider the revision, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. It is clarified that this direction shall apply only if the revision has been preferred in due compliance with the law. The revisional authority shall also bear in mind, the extension of limitation ordered by the Supreme Court ``` WP(C) NO. 1150 OF 2022 ``` ``` 9 ``` in In Re: Cognizance for Extension of Limitation [(2021) 5 SCC 452] and hence the period for pre-deposit of the amount contemplated under the statute will be available to the petitioner till 28.02.2022. This writ petition is disposed of. **Sd/-** BECHU KURIAN THOMAS JUDGE ssa/ ``` WP(C) NO. 1150 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 1150/2022`** ## **`PETITIONERS’ EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE ACKNOWLEDGEMENT DATED 23.4.2012 (PART-I) ISSUED BY THE DEPARTMENT OF INDUSTRIES IN THE NAME OF THE PETITIONER. ``` - **`Exhibit P2 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 15.12.2014 (PART-II) ISSUED BY THE DEPARTMENT OF INDUSTRIES.`** - **`Exhibit P3 TRUE COPY OF THE COMMUNICATION DATED 31.03.2017 RELATING TO EMPLOYEES’ STATE INSURANCE CORPORATION.`** - **`Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 1.6.2017 RELATING TO EMPLOYEES’ PROVIDENT FUND ORGANISATION.`** - **`Exhibit P5 TRUE COPY OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD ON 22.10.2019.`** - **`Exhibit P6 TRUE COPY OF THE LICENSE ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS ON 15.02.2021.`** - **`Exhibit P7 TRUE COPY OF THE LICENSE ISSUED BY THE PANCHAYATH ON 12.04.2021 IN THE NAME OF THE PETITIONER.`** - **`Exhibit P8 TRUE COPY OF THE ASSESSMENT ORDER ISSUED ON 25.11.2020.`** - **`Exhibit P9 TRUE COPY OF THE DEMAND DRAFT FOR RS. 2,83,800/- SUBMITTED IN THE NAME OF THE 5TH RESPONDENT.`** - **`Exhibit P10 TRUE COPY OF THE PROCEEDING OF THE 4TH RESPONDENT ON 16.09.2021.`** ``` Exhibit P11TRUE COPY OF THE REGISTRATION CERTIFICATE ``` ``` WP(C) NO. 1150 OF 2022 ``` ``` 11 ``` ``` ISSUED TO THE PETITIONER ON 25.10.2021 BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES. ``` - **`Exhibit P12`** - **`TRUE COPY OF THE CIRCULAR DATED 21.06.2019 ISSUED BY THE FIRST RESPONDENT.`** - **`Exhibit P13`** - **`TRUE COPY OF THE REPRESENTATION DATED 03.12.2021.`** - **`Exhibit P14 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD SENT FROM THE OFFICE OF THE FIRST RESPONDENT ON RECEIPT OF EXHIBIT P13 DATED 15.12.2021.`** - **`Exhibit P15 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD SENT FROM THE OFFICE OF THE 2ND RESPONDENT ON RECEIPT OF EXHIBIT P13. DATED 15.12.2021.`** - **`Exhibit P16 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARE SENT FROM THE OFFICE OF THE 3RD RESPONDENT ON RECEIPT OF EXHIBIT P13 DATED 15.12.2021.`** - **`Exhibit P17 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARE SENT FROM THE OFFICE OF THE 5TH RESPONDENT ON RECEIPT OF EXHIBIT P13 DATED 14.12.2021.`** - **`Exhibit P18 TRUE COPY OF THE COMMUNICATION DATED 20.12.2021 ISSUED BY THE 5TH RESPONDENT.`** - **`Exhibit P19 TRUE COPY OF THE REVISION PETITION DATED 22/01/2022 FILED BEFORE THE DISTRICT COLLECTOR, PALAKKAD.`** ``` Exhibit P20TRUE COPY OF THE POSTAL RECEIPT DATED 22/01/2022 ISSUED ON SENDING EXT.P19. ```