K.V. Jayalakshmi and others v. Tahsildar, Kanayanoor Taluk, Ernakulam District and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936** ## **WP(C).NO. 9574 OF 2007 (M) ---------------------------** ## **PETITIONER(S):** - **---------------** **1. K.V.JAYALAKSHMI, FLAT NO.G1, KRISHNA FLATS, KALATHIPARAMBU CROSS ROAD, ERNAKULAM.** **2. S.VISWANATHAN, FLAT NO.S 1, KRISHNA FLATS, KALATHIPARAMBU CROSS ROAD ERNAKULAM.** ## **3. T.G.SANGAMESWARAN,** - **FLAT NO.F 1, KRISHNA FLATS, KALATHIPARAMBU CROSS ROAD, ERNAKULAM.** ## **BY ADV. SRI.S.ANANTHAKRISHNAN** **RESPONDENT(S):** - **---------------** **1. TAHSILDAR, KANAYANOOR TALUK, ERNAKULAM DISTRICT.** - **2. K.PADMANABHAN, NO.8, AMIT SAGAR, PENDSE NAGAR, ROAD NO.1, SARASWATH COLONEY MUMBAI-201. (R2 IS DELETED AS PER ORDER DATED 04/09/2012 IN IA 11835/2012)** **3. K.VENKITASUBRAMANIAN,** - **DOOR NO.147/15, PUSHPA PARK, GARODIA NAGAR GHATKOPAR EAST, MUMBAI-077.** **4. K.V.PRASAD, F-4/20, PULIYAR FIRST LANE, TRUST PURAM, KODAMBAKKOM, CHENNAI-24.** ## **BY GOVERNMENT PLEADER SMT.K.T.LILLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 9574 OF 2007 (M)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE AGREEMENT DT.20.3.2004 ENTERED INTO BETWEEN THE 3[RD] PETITIONER AND THE CONTRACTOR** **EXT.P2: TRUE COPY OF THE ORDER DATED.13.12.2006 PASSED BY THE 1[ST] RESPONDENT.** **EXT.P3:TRUE COPY OF THE ORDER DATED 15.12.2006 PASSED BY THE 1[ST] RESPONDENT.** **EXT.P4: TRUE COPY OF THE DEMAND NOTICE DATED 15.12.2006 ISSUED BY THE 1[ST] RESPONDENT.** **EXT.P5: TRUE COPY OF THE ORDER DATED 15.12.2006 PASSED BY THE 1[ST] RESPONDENT** **EXT.P6: TRUE COPY OF THE RECEIPT DATED 09.03.2007** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C).No.9574 of 2007 **.............................................................** Dated this the 2[nd] day of December, 2014 ## **J U D G M E N T** The petitioners, together with respondents 3 and 4 and one K.Padmanabhan, had jointly put up a building on land that belonged to the said 3[rd] and 4[th] respondents and Sri.Padmanabhan. The building comprised of six residential apartments and, according to the petitioners, they had jointly contributed to the construction of the apartments in terms of Ext.P1 construction agreement that was entered into between them and the builder. It is their case that when the building came to be assessed for building tax, the assessment was completed against them by Ext.P3 order, by treating the entire building as one unit and not separate units for the purposes of assessment. Exts.P3 order, and Ext.P4 demand notice that was issued to the petitioners thereafter, were based on Ext.P2 order of the Tahsildar which, after taking note of the objections put forward by the petitioners, found that there was no material to justify a separate assessment of the individual apartments in the names of the owners of the said apartments. Thereafter, by Ext.P5 order, the petitioners were also assessed to luxury tax for the period from 2004-2005 to 2007-2008. In the writ petition, the petitioners have impugned Exts.P2, P3 and P5 orders and Ext.P4 demand notice. It is also submitted that they also 2 W.P.(C).No.9574 of 2007 remitted one installment of the building tax that was assessed on them by Ext.P3 order. Ext.P6 is the receipt evidencing the said payment. 2. A counter affidavit has been filed on behalf of the 1[st] respondent wherein it is stated that the petitioners had, at the time of assessment produced only copies of the individual returns, construction agreement, sale deed, building plan and permit (in the name of the builder), occupancy certificate (in the name of the builder), Electricity bill, Corporation tax receipts etc. It is pointed out that they did not produce any relevant documents to show that the cost of construction of the flats was met by them jointly. It was under these circumstances that the assessment orders were passed by the Tahsildar assessing the building as a single unit for the purposes of levy of building tax as also luxury tax. 3. I have heard Sri.Ananthakrishnan, the learned counsel appearing on behalf of the petitioners and Smt.K.T.Lilly, the learned Government Pleader appearing on behalf of the respondents. 4. On a consideration of the facts and circumstances of the 3 W.P.(C).No.9574 of 2007 case as also the submissions made across the Bar, I find that, apart from the documents already produced by the petitioners before the Tahsildar, as pointed out in the counter affidavit filed by the respondents, they have sought to rely on Exts.P7, P8, P9 and P10 documents that have been produced along with I.A.No.5124 of 2007. It is the contention of the petitioners that these documents would clearly establish that the cost of construction of the building was jointly met by the individual owners of the apartments and these documents considered together with the documents already submitted before the Tahsildar would be sufficient to ensure a separate assessment of the apartments for the purposes of building tax as well as luxury tax. On a consideration of the document now produced by the petitioners, as also the reasons of the assessing authority in Ext.P2 order, I am of the view that the matter requires a fresh consideration at the hands of the assessing authority. In a matter where the petitioners have filed objections with regard to the manner in which the assessment is to be conducted, and sought to place reliance on documents to substantiate their contentions with regard to a separate assessment to be done in respect of the various apartments, it becomes incumbent upon the part of the assessing authority to consider each of the documents holistically to determine whether the provisions of Explanation 2 to Section 2 4 W.P.(C).No.9574 of 2007 (e) would be attracted in a particular case. It would also be incumbent upon the assessing authority to take note of the decisions of this Court in **Nelson Rozario v. State of Kerala [2013 (1) KLT 573], Varghese v. State of Kerala [2013 (2) KLT 831], Natarajan v. State of Kerala [2013 (4) KLT 364], Pavan Kumar v. State of Kerala [2012 (2) KLT 889] and Tahsildar and another v. Soman Peter [ILR 2014 (4) Kerala 327]** while deciding upon the mode of assessment to be adopted. That apart, the findings of the assessing authority would also have a bearing on the issue of applicability of luxury tax on the apartments in question. In the instant case the demand of luxury tax is for the period from 2004-2005 to 2007-2008. Luxury tax being a yearly levy, the applicability of the levy would depend upon whether the assessee satisfies the preconditions for attracting the charge under Section 5A in each year. In otherwords, the determination of the factual position with regard to the ownership of a residential building, at the time of completion of construction, would not hold good for all times to come in the case of assessments to luxury tax, where the determination of the nature of the unit as also the ownership thereof, has to be determined every year. Thus, with a view to enabling the 1[st] respondent to complete the assessment afresh in the light of the directions in this 5 W.P.(C).No.9574 of 2007 judgment, I quash Exts.P2, P3 and P5 orders as also Ext.P4 demand notice. The 1[st] respondent shall pass fresh orders as directed within a period of three months from the date of receipt of a copy of this judgment, after affording the petitioners an opportunity of being heard. It is made clear that, while passing fresh orders in the matter, the 1[st] respondent shall specifically advert to the various documents produced by the petitioners in support of their contentions, and the order to be passed by him shall also contain reasons for his decision. The writ petition is disposed as above. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns W.P.(C).No.9574 of 2007 6