M/S Hi-Lite Realtors (India) LLP v. Revenue Divisional Officer, Kozhikode; Tahsildar, Kozhikode; Tahsildar, Revenue Recovery, Kozhikode; State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **WP(C).No. 7531 of 2017** **PETITIONER:** **M/S HI-LITE REALTORS (INDIA) LLP, HI-LITE CITY, THONDAYAD, CALICUT. (REPRESENTED BY ITS DESIGNATED PARTNER MR.SULAIMAN P.)** **BY ADVS.SRI.M.P.SHAMEEM AHAMED SRI.CYRIAC TOM SRI.S.K.SAJU** ## **RESPONDENT(S):** **1. THE REVENUE DIVISIONAL OFFICER, KOZHIKODE.673 001.** **2. THE THAHSILDAR, KOZHIKODE.673 001.** **3. THE THAHSILDAR, REVENUE RECOVERY, KOZHIKODE.673 001.** **4. STATE OF KERALA, (REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,** **THIRUVANANTHAPURAM).695 001.** **BY SPECIAL GOVERNMENT PLEADER SRI.P.RAVINDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PBS** **WP(C).No. 7531 of 2017 (N)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 COPY OF THE BUILDING PERMIT NO.798/09-10 ISSUED BY OLAVANNA GRAMA PANCHAYAT.** - **EXHIBIT P2 COPY OF THE AGREEMENT TO SELL EXECUTED BY THE PETITIONER BUILDER WITH THE PROSPECTIVE PURCHASER DURING THE CONSTRUCTION STAGE** - **EXHIBIT P3 COPY OF THE SAMPLE SALE AGREEMENT EXECUTED BETWEEN THE BUILDER AND SUCH PURCHASERS OF SELF-CONTAINED OFFICE SPACES/UNITS.** - **EXHIBIT P4A THE DETAILS OF THE VARIOUS SELF-CONTAINED SHOPS/UNITS OWNED BY DIFFERENT PERSONS.** - **EXHIBIT P4B DETAILS OF UNITS RETAINED AND OWNED IN THE NAME OF THE PETITIONER ARE PRODUCED.** - **EXHIBIT P5 COPY OF THE ASSESSMENT ORDER DATED 2.2.2016.** - **EXHIBIT P6 COPY OF THE JUDGMENT DATED 16.03.2016.** - **EXHIBIT P7 COPY OF THE SUBMISSIONS DATED 29.03.2016 FILED BY THE PETITIONER COMPANY.** - **EXHIBIT P8 COPY OF THE NOTICE DATED 7 APRIL 2016.** - **EXHIBIT P9 COPY OF THE SUBMISSIONS DATED 22.04.2016 FILED WITH THE RESPONDENT.** - **EXHIBIT P10 COPY OF THE ASSESSMENT ORDER DATED 21.06.2016 PASSED BY THE 2ND RESPONDENT IS PRODUCED.** - **EXHIBIT P11 COPY OF THE 1ST APPEAL FILED BY THE PETITIONER.** - **EXHIBIT P12 COPY OF THE DEMAND NOTICE DATED 7.11.2016 UNDER REVENUE RECOVERY PROCEEDINGS.** - **EXHIBIT P13 COPY OF THE APPEAL VIDE JUDGMENT DATED 1.12.2016.** - **EXHIBIT P14 COPY OF THE NOTES OF ARGUMENTS FILED ON 30.12.2016.** - **EXHIBIT P15 COPY OF WRITTEN SUBMISSIONS FILED ON 16.01.2017.** - **EXHIBIT P16 COPY OF THE ORDER DATED 23.02.2017 PASSED BY THE 1ST RESPONDENT DISMISSING THE APPEAL AS SERVED BY THE 3RD RESPONDENT.** ## **WP(C).No. 7531 of 2017 (N)** - **EXHIBIT P17 COPY OF DEPOSIST OF RS.54,64,800 IS PRODUCED.** - **EXHIBIT P18 COPY OF THE LETTER DATED 1.06.2005 ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT.** - **EXHIBIT P19 A COPY OF THE BUILDING PLAN IN RESPECT OF THE SHOPPING MALL IN QUESTION.** - **EXHIBIT P20 AFFIDAVIT OF ADV. RAJESH P.** - **EXHIBIT P21 LEDGER EXTRACT OF CUSTOMER.** - **EXHIBIT P22 STATEMENT SHOWING THE DETAILS OF VARIOUS UNITS IN THE BUILDING “HI-LITE MALL”** - **EXHIBIT P23 STATEMENT SHOWING THE DETAILS AS PER INTERIM ORDER DATED 17.01.2018.** - **EXHIBIT P24 COPY OF THE AUDITED BALANCE SHEETS FOR THE PERIOD 200910 TO FINANCIAL YEAR 2014-15.** - **EXHIBIT P25 AUDITOR CERTIFICATE DATED 9/02/2018 SHOWING DETAILS OF RECEIPTS OTHER THAN BY WAY OF BANK TRANSFER /DD/CHEQUE.** ## **RESPONDENT'S EXHIBIT** - **EXHIBIT R2(A) TRUE COPY OF THE TAX RECEIPTS IN RESPECT OF 125 SHOP ROOMS ISSUED BY OLAVANNA GRAMA PANCHAYAT** - **EXHIBIT R2(B) TRUE COPY OF THE AGREEMENT EXECUTED THE FOR SHOP NO. 55B.** **TRUE COPY** **PS TO JUDGE** **PBS** **19/6/2018** **C.R.** ## **P.B.SURESH KUMAR, J.** **--------------------------------------------** ## **W.P.(C).No.7531 of 2017** **--------------------------------------------------------------Dated this the 14[th] day of June, 2018** ## **J U D G M E N T** Exhibits P10 and P16 orders issued under the Kerala Building Tax Act, 1975 (the Act), are under challenge in the writ petition. 2. The petitioner is a firm engaged in the business of construction and sale of commercial buildings. During 2010, the petitioner announced a building project consisting of 338 independent units in a property owned by them. Exhibit P1 is the building permit obtained by the petitioner for construction of the said building. As the units in the building were intended to be sold to third parties and as the petitioner was contemplating to W.P.(c).No.7531 of 2017 : 2 : construct the building with the money received from prospective purchasers of the units, they started entering into agreements with prospective buyers for sale of the units as also the undivided rights in the property. Simultaneously, the petitioner commenced the construction of the building also making use of the advance and the periodical payments received from the prospective buyers. The petitioner could not sell all the units and they have, therefore, decided to hold the unsold units in their name. The construction of the building was completed in the year 2014. On completion of the construction of the building, sale deeds have been executed by the petitioner in favour of the purchasers who have paid the price in full and came forward to get the sale deed. It is stated that by the petitioner that some of the persons to whom units have been sold are yet to come forward to get the sale deeds of their respective holdings and sale deeds were consequently not executed in their favour. It is also stated some of the petitioners to whom W.P.(c).No.7531 of 2017 : 3 : units have been sold are to make the full payments and therefore, sale deeds in their favour will be executed when they make the full payment. 3. According to the petitioner, the units which have been constructed for others with the funds provided by them have to be assessed under the Act in their name and the rest have to be assessed in the name of the petitioner. The assessing authority, however, assessed the entire building in the name of the petitioner in terms of Exhibit P5 order. Exhibit P5 order was interfered with by this Court in W.P.(C) No. 7947 of 2016 and the assessing authority was directed to consider whether the units are liable to be treated as independent buildings for the purpose of assessment under the Act. Exhibit P6 is the judgment rendered by this court in the said writ petition. The building was assessed even thereafter in the name of the petitioner holding that Explanation 2 to Section 2(e) of the Act relied on by the petitioner to contend that the units are treated as W.P.(c).No.7531 of 2017 : 4 : independent buildings does not apply to commercial buildings. Exhibit P10 is the order issued by the assessing authority in this connection. In Exhibit P10, the assessing authority has also held that since the buyers do not get a right in the property in terms of the arrangement entered into by the petitioner with them till the construction of the building is completed, the units cannot be treated as independent buildings belonging to them for assessment under the Act. The petitioner though challenged Exhibit P10 order in appeal, the appellate authority confirmed the said order holding that the materials on record do not indicate that the cost of construction of the building was met by persons who have purchased units in the building. Exhibit P16 is the order issued by the appellate authority in this connection. As noted, the petitioner is aggrieved by Exhibits P10 and P16 orders. 4. A counter affidavit has been filed on behalf of the respondents. At the outset, it is contended by the W.P.(c).No.7531 of 2017 : 5 : respondents in the counter affidavit that insofar as the petitioner has an alternative remedy by way of revision under Section 13 of the Act against Exhibit P16 order, the writ petition is not maintainable. It is also contended by the respondents that neither the petitioner nor the persons to whom the petitioner sold the units have produced documents to show that the building has been constructed with the funds provided by all of them together. Placing reliance on Exhibit R2(a) series property tax receipts issued by the local authority in the name of one of the partners of the petitioner in respect of the units in the building, it is also contended by the respondents that the case of the petitioner that they have constructed the building with the funds provided by the persons to whom the units have been sold cannot be accepted. It is also contended by the respondents that the sale agreements relied on by the petitioner could not be acted upon as all of them are unregistered documents and some among them were found to be false. W.P.(c).No.7531 of 2017 : 6 : 5. The petitioner filed a reply affidavit meeting the contentions raised by the respondents in the counter affidavit. In the reply affidavit, it is asserted by the petitioner that they have made available before the assessing authority the building permit, the agreements for sale executed by them, the occupancy certificate of the building, bank statements and the sale deeds executed by them to establish that the building has been constructed with the funds received from the persons to whom the units in the building have been sold by them. 6. The matter was heard in part on 17.1.2018. In the course of hearing, it was revealed that completion certificate of the building was issued by the local authority on 27/5/2014. After hearing the parties for quite sometime on that day, this Court passed an interim order directing the petitioner to file a statement indicating the particulars of the agreements entered into by them with the prospective buyers of units before and after the completion of the W.P.(c).No.7531 of 2017 : 7 : construction of the building, as also the particulars of the sale deeds executed in furtherance to the said agreements before and after the completion of the construction of the building. In response to the said interim order, the petitioner has made available Exhibits P23 to P25 additional documents. 7. Heard the learned counsel for the petitioner as also the learned Special Government Pleader (Taxes) for the State. 8. The writ petition was admitted on 07.03.2017. This Court also passed an interim order on that day staying the proceedings for realization of the assessed tax from the petitioner. The respondents have filed their counter affidavit on 30.03.2017. The petitioner has filed a reply on 23.05.2017 to the counter affidavit filed by the respondents. It is held time and again by this Court that when a writ petition is admitted and the respondents have chosen to file their counter affidavit in the matter, it may not W.P.(c).No.7531 of 2017 : 8 : be appropriate to dismiss the writ petition as not maintainable after considerable lapse of time on the ground of alternative remedy. Further, it is trite that existence of alternative remedy is not a bar for this court to entertain a writ petition on merits, in appropriate cases. In the circumstances, I am of the view that it is inappropriate at this stage of the proceedings to dismiss the writ petition as not maintainable. 9. Though various contentions have been raised by the respondents in the counter affidavit filed in the matter, in a proceedings of this nature, this Court is expected to consider only the sustainability or otherwise of the reasons stated in the impugned orders [See **Mohinder Singh Gill and another** v. **The Chief Election Commissioner, New Delhi and others** (AIR 1978 SC 851)]. As noted, the assessing authority declined to treat the independent units in the building as separate buildings for the purpose of assessment under the Act for two reasons. W.P.(c).No.7531 of 2017 : 9 : The first reason is that Explanation 2 to Section 2(e) of the Act does not apply to commercial buildings. The second reason is that persons to whom the petitioner sold the units in the building would acquire a right in the property only after completion of the construction of the building and therefore, the building cannot be treated as constructed by its owners. Coming to Exhibit P16 order, the appellate authority though found that the building has to be assessed having regard to Explanation 2 to Section 2(e) of the Act, declined to interfere with Exhibit P10 order on the ground that the petitioner has not established that the cost of construction of the building was met by persons who have purchased the units in the building. The findings rendered by the authorities as referred to above are mutually destructive. While the assessing authority accepts the fact that the petitioner received amounts from persons to whom they agreed to sell the units, the appellate authority has taken the stand that the petitioner has not established the said W.P.(c).No.7531 of 2017 : 10 : fact. Be that as it may, according to me, the issues in dispute between the parties can be resolved without going much into the factual issues. 10. Before dealing with the facts of this case, it is necessary to refer to the ground realities prevailing in the State in the field of construction of the buildings of the instant nature. Multi-storied buildings, both commercial and residential, are generally constructed by developers, either after purchasing land in their name or after entering into development agreements with the owners of the lands. It is common knowledge that a developer may not be able to sell all the units in the building before commencing the construction. The practice, therefore, is that the construction of the building would be started with the funds of the developer and in the course of construction, the developer would enter into either agreements with the prospective buyers for sale of the undivided right in the property as also for construction of their portion of the building and receive W.P.(c).No.7531 of 2017 : 11 : periodical payments depending on the progress of the work and on completion of the construction, sale deeds will be executed in favour of the buyers of the units. 11. Now I shall come to the statutory provisions. The provisions contained in Sections 7 and 9 of the Act indicate beyond doubt that taxable event is completion of the construction of the building and the liability to pay tax is on the owner of the building. Section 2(e) of the Act defines 'building'. Explanation 2 to Section 2(e) of the Act clarifies that where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building for the purpose of the Act. Explanation 2 referred to above reads thus: _“Explanation 2 - Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a_ W.P.(c).No.7531 of 2017 : 12 : ## _separate building.”_ If Explanation 2 to Section 2(e) is understood in the light of Sections 7 and 9 of the Act, it is clear that when a building consisting of different apartments or flats is constructed jointly by different persons, each contributing to the cost of construction of his/her respective units, each unit has to be assessed in the name of its owner. In other words, the object of Explanation 2 to Section 2(e) of the Act is to ensure that the building is assessed only in the name of the person to whom it belongs. It is on account of the said reason that this Court passed Exhibit P6 judgment directing the assessing authority to consider whether the building is liable to be treated as a composite one or different individual units for the purpose of assessment under the Act. If one would apply the same reasoning, there is no difficulty in holding that if the building is one constructed by a developer for another, the same has to be assessed in the name of the person for whom the same was constructed. The owner may W.P.(c).No.7531 of 2017 : 13 : get right in the property before or after the completion of construction. The same is not decisive at all in the matter of deciding the issue whether the independent units in the buildings are to be treated as separate buildings for the purpose of assessment under the Act. Similar view is seen taken by this Court in _**Balu v. State of Kerala**_ [1994(2) KLT 42]. Paragraph 3 of the said judgment reads thus: 3. The sole question for decision is whether the assessment of the entire building consisting of twenty two flats as one unit is legal and valid. There is no dispute about the facts of the case. The building is an integral one consiting of twenty two flats. It is a multistoryed one. The land belongs to the various flat owners in coownership, after the transfer effected to them of the undivided interest in the land, the transfer being effected after the construction of the flats was complete. What Explanation 2 lays down is that if a building consists of different apartments or flats owned by different persons, and the cost of construction of the building is met by such persons jointly, each apartment or flat shall be deemed to be a separate building. The ingredients of the Explanation are (a) the existence of a building, (b) that building must consist of different apartments or flats, (c) the apartments or flats must be owned by different persons and (d) the cost of W.P.(c).No.7531 of 2017 : 14 : construction of the building should be met by such persons jointly. If these ingredients concur, each of the apartments or flats will be deemed to be a separate building, though the building is one structurally and there is an integral connection between the various parts of the building. The Explanation in effect splits on otherwise integral unit or building into multiple buildings, liable to be assessed separately. It would have been otherwise going by the main part of the definition alone. Evidently this has been done to encourage construction of apartments and flats and to alleviate the burden that will otherwise fall heavily by assessing the entire building as one unit. The fact that the undivided interest in the land is transferred only subsequent to the construction of the flats is in my opinion, irrelevant in deciding on the applicability of Explanation 2. The building in this case therefore satisfies the conditions of Explanation 2 to S.2(e). The assessing authority has not given any reasons in Ext.P7 to deny the benefit of separate assessment to the flat owners in this case, or any justification for assessing the entire building as one unit on the developer. Such assessments without keeping in mind the basic philosophy underlying the Explanation will only act as a damper to such construction activity in the State.” (underline supplied) Section 7 of the Act provides for furnishing of the return by the owner of the building for the purpose of assessment. W.P.(c).No.7531 of 2017 : 15 : Section 8 of the Act provides that if a person has not furnished the return within the time stipulated, he may furnish the return at any time before the assessment is made. Section 9 of the Act provides for assessment in cases where return is filed and also in cases where return is not filed. In other words, as far as multi-storied buildings consisting of independent units are concerned, it appears to me that the scheme of the statute is that after completion of the construction, the owner has to obtain conveyance deed in respect of the unit from the developer and file the return. In case the return is not filed, the owner has time till the time of assessment for obtaining conveyance deed and for filing return. In other words, in cases where transfer of property is not effected before the assessment proceedings, as the obligation in terms of the statute to pay tax for the building is on the owner of the building and as the agreement for sale does not confer any title on the agreement holder, such units cannot be assessed in the W.P.(c).No.7531 of 2017 : 16 : name of the persons with whom the developer has entered into the agreement for sale, for, the same cannot be treated as units owned by such persons. It is, therefore, to be clarified that conveyance deeds have to be obtained at any rate by the owners concerned before the assessment of the building. This is the only plausible view which can be taken in a matter like this since it is not certain that the developer would certainly convey ownership of the unit to persons with whom they have entered into agreements for sale after the assessment. If for some reason, the agreement holder does not make the payment in full, the developer may not convey ownership of the unit to him and the assessing authority is not expected to wait until appropriate conveyance deed is executed by the developer in respect of all the units constructed by them. 12. Reverting to the facts of the case, it is seen that in compliance with the interim order passed by this Court on 17.01.2018, the petitioner has filed an affidavit W.P.(c).No.7531 of 2017 : 17 : stating that they had entered into agreements with third parties for sale of only 224 units out of 338 units constructed by them. Insofar as the taxable event under the Act is completion of the construction of the building, the units in respect of which there were no agreements before completion of the construction of the building are to be treated as constructed by the petitioner themselves and the said units are, therefore, to be assessed in the name of the petitioner. As far as units in respect of which the petitioner had entered into agreements for sale with third parties, it has to be seen further as to whether conveyance deeds have been executed in their favour before the date of assessment, which in the instant case is 02.02.2016, the date on which Exhibit P5 order was issued. Needless to say that if conveyance deeds have been executed in furtherance to the agreements for sale before the date of assessment, such units are certainly to be assessed in the name of its owners. The petitioner has a case that amounts have been paid by W.P.(c).No.7531 of 2017 : 18 : third parties to them on oral arrangements to purchase units in the building. Such buildings of course, can be assessed in the name of third parties, provided conveyance deeds have been executed in respect of the same by the petitioner before 2.2.2016, if the owners do not object such assessment. Needless also to say that the remaining units among the said 224 units are to be assessed in the name of the petitioner. In the result, the writ petition is disposed of as follows: i) Ext.P10 order of the assessing authority and Ext.P16 order of the appellate authority will stand set aside. ii) The assessing authority shall ascertain from out of the 224 units in the building, in respect of which the petitioner claims that they have entered into agreements with third parties for sale before 27.05.2014 as mentioned in the affidavit filed by them before this Court in compliance with the interim order dated 17th January, 2018, the W.P.(c).No.7531 of 2017 : 19 : particulars of the units in respect of which conveyance deeds have been executed before 02.02.2016 and assess the said units in the name of its respective owners after issuing notice to them. Units in respect of which conveyance deeds have been executed before 02.02.2016 without there being any written agreements shall also be assessed in the name of the owners, with notice to them, if the owners do not raise any objection against such assessments. If persons who have obtained conveyance deeds before 02.02.2016 dispute their liability to pay tax, such disputes shall be independently decided. iii) The assessing authority shall assess all the remaining units in the building in the name of the petitioner with notice to them. Sd/- **P.B.SURESH KUMAR JUDGE** rsr