K.V.R.CARS represented by the Manager K.N. Jayarajan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** **WP(C).No.10724 OF 2019(M)** ## **PETITIONER/S:** **K.V.R.CARS REPRESENTED BY THE MANAGER K.N. JAYARAJAN, N.H. 17 BY-PASS , ARANGADI, KANDHANGAD SOUTH, KASARAGOD DISTRICT, PIN 671 315 BY ADVS. SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON VINEETHA JAMES** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE (SPECIAL CELL) DEPARTMENT, THIRUVANANTHAPURAM 695 001 2 THE DISTRICT COLLECTOR, KANNUR 670001. 3 THE REVENUE DIVISIONAL OFFICER, TELLICHERRY- 670101 4 THE TAHSILDAR, KANNUR 670003** ## **OTHER PRESENT:** **SMT.M.M.JASMINE, GP** W.P(C) No.10724/19 2 **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10724/19 3 ## **JUDGMENT** The challenge in the writ petition is against Ext.P10 order of the 1[st] respondent rejecting a claim for exemption preferred by the petitioner under Section 3(1)(b) of the Kerala Building Tax Act, 1975. The facts stated in the writ petition would indicate that the petitioner had put up a building in his property, situated in Re-survey No.42/8 of Chirakkal Village, in connection with his authorised dealership in Maruthi cars. The building permit and plan produced by the petitioner indicates that the plinth area of the building is 1577.84M[2] and the building is spread over two floors with the ground floor having a plinth area of 1310.52M[2] and the first floor 267.32 M[2] . The floor plan of the building shows that there is a portion ear-marked for service and another portion ear-marked for body shop in the ground floor of the building. There are no details forthcoming, however, as to which portion of the building conforms to the description of workshop, in respect of which the petitioner was claiming exemption. The assessing authority initially passed Ext.P9 assessment order, assessing that portion of the building which was admittedly not being used as a workshop, to tax by applying the rates applicable to commercial spaces. Thereafter, by Ext.P10 order, the Government rejected the claim of the petitioner for exemption by finding that even the disputed area of the building was not being solely used as a workshop. Reliance was also placed on the report from the Taluk Officer, Kannur, who pointed out that exhibition for sales and service of vehicles was W.P(C) No.10724/19 4 being held in the building and that the said facts had been confirmed by the Village Officer who conducted a site inspection. Consequent to the rejection of the claim for exemption, Ext.P11 assessment order was passed by the Tahsildar assessing the building in its entirety to tax and demanding the differential tax of Rs.1,87,200/- from the petitioner. The appeal and revision preferred by the petitioner against the said assessment order did not bear any fruit since they were dismissed by the appellate and revisional authorities by Exts.P13 and P14 orders, stating that the Government had already rejected the claim for exemption by the petitioner. It is under the said circumstances that the petitioner has impugned Ext.P10 Government Order before this Court in the writ petition. 2. Through a statement filed on behalf of the respondents, the findings of the 1[st] respondent in Ext.P10 order are sought to be justified on the contention that there was no material produced by the petitioner to suggest that a substantial part of the building in question was used as a workshop for the purposes of sustaining the claim for exemption. Reliance was also placed on the decision of this Court in **Sakeer Hussain v. State of Kerala [2016 (1) KLT 434]** . 3. A reply affidavit has been filed by the petitioner refuting the averments in the statement filed on behalf of the respondents. 4. I have heard the learned counsel for the petitioner and the learned W.P(C) No.10724/19 5 Government Pleader for the respondents. 5. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that when an assessee claims exemption from tax under a fiscal statute, the burden of proof is on the assessee to show that the conditions necessary for grant of exemption are fulfilled by him. In the instant case, there is no material produced by the petitioner that would suggest that a substantial portion of the building is used as a workshop or a factory for the purposes of the grant of exemption under Section 3 of the Building Tax Act. In the absence of any material to clearly indicate that a substantial portion of the building was used as a workshop or factory, Ext.P10 order passed by the 1[st] respondent cannot be said to be illegal. As already noticed, the burden of proof to establish the entitlement for exemption is firmly on the assessee under a fiscal statute. I, therefore, see no reason to interfere with Ext.P10 order of the 1[st] respondent in these proceedings under Article 226 of the Constitution of India. The writ petition fails and is accordingly dismissed. Taking note of the submission of the learned counsel for the petitioner that an amount of Rs.50,000/- has already been deposited pursuant to the direction of this Court while granting stay against recovery of the balance amount, I make it clear that the petitioner need only discharge the balance liability pursuant to Ext.P11 assessment order to the respondents. The said balance payment shall be effected within two months from the date of W.P(C) No.10724/19 6 receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition and a copy of this judgment before the respondents for further action. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** okb //True copy// P.S. to Judge W.P(C) No.10724/19 7 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF BUILDING PERMIT ISSUED BY THE CHIRAKKAL GRAMA PANCHAYATH DATED 31.12.2012** - **EXHIBIT P2 TRUE COPY OF THE LOCATION MAP OF THE BUILDING** **EXHIBIT P3 TRUE COPY OF THE LICENSE ISSUED BY THE CHIRAKKAL GRAMA PANCHAYATH TO THE PETITIONER DATED 18.12.2014** - **EXHIBIT P3 A ENGLISH TRANSLATION OF EXT P3** - **EXHIBIT P4 TRUE COPY OF THE LICENSE ISSUED BY THE CHIRAKKAL GRAMA PANCHAYATH TO THE PETITIONER DATED 22.2.2019, RENEWING THE LICENSE FORM 1.4.2018 TO 31.3.2019** **EXHIBIT P4 A ENGLISH TRANSLATION OF EX P4. EXHIBIT P5 TRUE COPY OF THE RENEWAL OF THE CONSENT GIVEN BY THE KERALA POLLUTION CONTROL BOARD DATED 24.1.2019 EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 3.8.2012 ISSUED BY THE FIRE & RESCUE SERVICES, DIVISIONAL OFFICE, KOZHIKODE TO THE PETITIONER EXHIBIT P7 TRUE COPY OF THE PERMIT DATED 26.11.2015 ISSUED BY THE DIRECTOR FACTORIES AND BOILERS, THIRUVANANTHAPURAM EXHIBIT P8 TRUE COPY OF THE ELECTRICITY BILL ISSUED BY THE KERALA STATE ELECTRICITY BOARD LIMITED DATED 5.3.2019 TO THE PETITIONER EXHIBIT P9 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 4TH RESPONDENT DATED 18.9.2014** W.P(C) No.10724/19 8 **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 9.9.2016 ISSUED BY THE 1ST RESPONDENT EXHIBIT P11 TRUE COPY OF THE REVISED ASSESSMENT ORDER PASSED BY THE 4TH RESPONDENT DATED 17.10.2016 EXHIBIT P11 A ENGLISH TRANSLATION OF EX P11. EXHIBIT P12 TRUE COPY OF THE APPEAL PETITION DATED 25.11.2016 EXHIBIT P13 TRUE COPY OF THE ORDER IN APPEAL DATED 8.3.2018 PASSED BY THE 3RD RESPONDENT EXHIBIT P13 A ENGLISH TRANSLATION OF EX P13 EXHIBIT P14 TRUE COPY OF THE REVISIONAL ORDER PASSED BY THE 2ND RESPONDENT DATED 21.2.2019 EXHIBIT P14 A ENGLISH TRANSLATION OF EX P14.**