High Court of KeralaSingle Judge2014-09-16Writ petition disposed of with Ext.P12 set asid...

Rajesh Prabhu v. Tahsildar (Assessing Authority) under Kerala Building Tax Act, Kanayannur Taluk, Ernakulam; Revenue Divisional Officer, Fort Kochi

Case / Petition Number:WP(C).No. 20931 of 2012 (n)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
Judgment Date: 2014-09-16
Court Decision / Holding: Writ petition disposed of. Ext.P12 is set aside and the 2nd respondent is directed to reconsider the matter with reference to the actual facts and figures and the law in Pavan Kumar v. State of Kerala, 2012 (2) KLT 889, after giving an opportunity of hearing to the petitioner and considering the materials on record. The proceedings shall be finalized within three months. The petitioner may be allowed to place further materials as required by law; the Legislature’s Explanation II to Section 2(e) of the Kerala Building Tax Act may be invoked.
Final Disposition: Writ petition disposed of with Ext.P12 set aside; remand for reconsideration of the tax assessment in light of Pavan Kumar v. State of Kerala, with opportunity of hearing and within three months; leave to collect further materials as needed; provisions of Explanation II to Section 2(e) of the Kerala Building Tax Act to be considered if applicable.

Parties to the Case

Appellants / Petitioners

Rajesh Prabhu, S/o Late Ramdas Prabhu, Indradhanus Apartments, T.D. Road, Ernakulam

Respondents

Tahsildar (Assessing Authority) under Kerala Building Tax Act, Kanayannur Taluk, Ernakulam
Revenue Divisional Officer, Fort Kochi

Legal Representation & Advocates

Counsels for Petitioners

• R. Lakshmi Narayan
• Smt. R. Ranjini

Counsels for Respondents

• Dr. Sebastian Champappilly

Case Synopsis & Summary

This writ petition challenges Ext.P1 assessment order under the Kerala Building Tax Act, as affirmed by Ext.P12, arguing that the tax assessment treated a single multi-unit building as a single entity, denying the petitioner the benefit of explanation II to Section 2(e). The petitioner, Rajesh Prabhu, is the son of the late owner who had a 56.330 cents land in Ernakulam Village. A builder constructed a multi-storey building under an agreement that 37% of the built-up area would be allocated to the landowner and 63% to the builder. The petitioner contends that, after a Will, he is entitled to 11 flats (residential) and a significantly sized non-residential space, with certain flats allocated to his mother and sister. The grievance is that while the building and other flats have been assessed separately, the petitioner’s property is clubbed into one building for tax purposes. He asserts discriminatory treatment and seeks the benefit under Explanation II to Section 2(e) of the Kerala Building Tax Act. It is noted that the petitioner previously challenged the same issues in WP 8687 of 2008; the appellate order (Ext.P12) dismissed the appeal without addressing merits due to non-appearance. The court, after hearing both sides, found that the matter requires reconsideration in light of Pavan Kumar v. State of Kerala and directed a fresh examination with opportunity of hearing, within three months, and expressly permitted consideration of the Explanation II claim.

Provisions of Law Cited

Kerala Building Tax Act, 1975Section 2(e)Explanation II to Section 2(e)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Kerala Building Tax Act permits separate assessment under the Explanation II to Section 2(e), and that clubbing all flats of the building into a single tax unit is discriminatory since other flats and the mother’s flat have been assessed separately. He relies on earlier orders and notes of argument; cites that Ext.P12 was issued after long delay and without merits consideration, and urges this Court to reconsider in line with the principle laid down in Pavan Kumar v. State of Kerala (2012 (2) KLT 889).

Contentions of Respondents

The respondents argue absence of a proper agreement to support separate assessment and point to discrepancies in documentary dates (Exts. R1(a)–R1(d)). They contend that the 1st respondent’s assessment and the appellate order were based on the factual records, and that the petitioner's earlier challenge should be resolved by reassessing the merits with due process; Ext.P12 reflects dismissal for non-appearance, not on merits. They urge that the matter require proper reconsideration with reference to governing law.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pavan Kumar v. State of Kerala	2012 (2) KLT 889	Positive	Court relied on this Division Bench decision to support the petitioner’s position on the possibility of separate assessment under the Act and to require reconsideration of the appellate order in light of that ruling.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Rajesh Prabhu v. Tahsildar (Assessing Authority) under Kerala Building Tax Act, Kanayannur Taluk, Ernakulam; Revenue Divisional Officer, Fort Kochi and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936** ## **WP(C).No. 20931 of 2012 (n)** **----------------------------** **PETITIONER :** **RAJESH PRABHU, S/O. LATE RAMDAS PRABHU, INDRADHANUS APARTMENTS T.D.ROAD, ERNAKULAM.** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI** **RESPONDENTS :** ## **1. TAHSILDAR** **(ASSESSING AUTHORITY) UNDER KERALA BUILDING TAX ACT KANAYANNUR TALUK, ERNAKULAM. 682 011.** ## **2. REVENUE DIVISIONAL OFFICER,** **FORT KOCHI- 682 001.** **R1 & R2 BY SPL. GOVERNMENT PLEADER DR. SEBASTIAN CHAMPAPPILLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 20931 of 2012 (n)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT-P1: THE PHOTOCOPY OF THE ORDER DATED 24.1.2008 EXHIBIT-P2: THE PHOTOCOPY OF THE ORDER OF ASSESSMENT. EXHIBIT-P3: THE PHOTOCOPY OF THE DEMAND NOTICE DATED 24.1.2008. EXHIBIT-P4: THE PHOTOCOPY OF THE DEMAND NOTICE DATED 24.1.2008. EXHIBIT-P5: THE PHOTOCOPY OF THE DEMAND NOTICE DATED 24.1.2008. EXHIBIT-P6: THE PHOTOCOPY OF THE DEMAND NOTICE AND ASSESSMENT ORDER DATED 24.1.2008.** - **EXHIBIT-P7: THE PHOTOCOPY OF THE ORDER OF ASSESSMENT DATED 24.1.2008 EXHIBIT-P8: THE PHOTOCOPY OF THE RECEIPTS EVIDENCING PAYMENT. EXHIBIT-P9: THE PHOTOCOPY OF THE JUDGMENT IN WP.8687/08 DATED 28.3.2008 EXHIBIT-P10: PHOTOCOPY OF THE APPEAL PREFERRED BY THE PETITIONER. EXHIBIT-P11: THE PHOTOCOPY OF THE ARGUMENT NOTE DATED 15.7.2008** - **EXHIBIT-P12: THE PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DATED 21.7.2012.** **RESPONDENTS' EXHIBITS :** **EXT.R1(A): COPY OF THE BUILDING PERMIT NO. MOP 4-215/95 DT 25-061996. EXT.R1(B): COPY OF THE OCCUPANCY CERTIFICATE. EXT.R1(C): COPY OF THE SALE DEED NO. 696/1/2001. EXT.R1(D): COPY OF THE REQUEST OF THE INDRADHANUS FLAT OWNERS WELFARE ASSOCIATION DT 19[TH] SEPTEMBER, 2007.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **P.R. RAMACHANDRA MENON, J.** ======================== ## W.P.(C). No. 20931 of 2012 -------------------------------------------Dated this the 16[th] day of September, 2014 ## **JUDGMENT** Ext.P1 assessment order passed by the 1[st] respondent, as confirmed by the 2[nd] respondent by way of Ext.P12 order passed in appeal, forms the subject matter of challenge in this writ petition. 2. The father of the petitioner was the owner of the property having an extent of 56.330 cents of land in Sy. No. 659/6,7,11 and 1185/2 of Ernakulam Village. During his life time, he entered in to an agreement with M/s. Yasoram Construction Company for construction of a multistoried building therein, agreeing to have apportionment of the building to an extent of 37% to be alloted to the land owner and balance 63% to the builder. It is stated that the original owner of the property is no more, who had executed a 'Will' so as to obtain returns from the builder in the proportion already set forth as desired by him. The construction is stated as completed by the builder and by virtue of the terms of the Will, the petitioner is entitled to W.P.C. No. 20931 of 2012 -2- have 11 Flats (residential occupancy) and a further space of nearly 310.20 Sq.mtr of non residential space. Two other Flats have been alloted, one in the name of the mother of the petitioner and the other in the name of his sister. The grievance of the petitioner is mainly with regard to the clubbing of different apartments allotted to him and fixing the tax liability treating it as a single building, denying the benefit of explanation (II) to Section 2(e) of Kerala Building Tax Act. It is stated that the building allotted to the mother of the petitioner has been assessed separately and that the different Flats constructed by the builder and sold to the prospective customers have also been assessed separately, whereas an arbitrary and discriminatory stand has been taken in the case of the petitioner and hence the challenge. 3. The first respondent has filed a counter affidavit seeking to sustain the course and events, also producing some documents such as the Building Permit, Occupancy Certificate and such other documents on different dates as Exts. R1(a) to R1 (d). It is seen from the pleadings and proceedings that the W.P.C. No. 20931 of 2012 -3- petitioner had approached this Court earlier, challenging Ext.P1 assessment order and Exts. P2 to P7 demand notices by filing W.P.(C). No. 8687 of 2008, which was disposed of as per Ext.P9 judgment dated 28.3.2008, relegating the petitioner to avail the statutory remedy before the second respondent, after satisfying 50% of the total demand. The petitioner satisfied the said requirement and filed Ext.P10 and similar appeals. During the pendency of the proceedings, the petitioner submitted Ext.P11 notes of argument as well. Nothing was heard for quite long time and after four years, Ext.P12 order was passed by the 2[nd] respondent on 21.07.2012, holding that the petitioner had not turned up for hearing on 18.7.2008, 29.08.2008 and on 24.10.2008, thus rejecting the appeals without entering into the merits of the case. This made the petitioner to approach this Court by filing this writ petition. 4. The learned counsel for the petitioner submits that the issue is squarely covered in favour of the petitioner, by virtue of the judgment rendered by a Division Bench of this Court reported in **Pavan Kumar v. State of Kerala** (2012 (2) KLT 889). W.P.C. No. 20931 of 2012 -4- 5. The learned Special Government Pleader appearing for the respondents submits that there is some factual difference with regard to the case involved herein, in so far as no proper agreement was produced to have the issue considered for separate assessment. Reference is also made to the discrepancies with regard to the different dates of the documents produced as Exts. R1(a) to R1(d), also pointing out that the father of the petitioner took his last breath on 18.9.1995, while the 'Will' was stated as executed just on the previous day. Ext. R1(a) Building Permit was issued subsequently on '25.06.1996' in the name of the deceased, followed by such other documents regarding the Partial Occupancy Certificate and Full Occupancy Certificates. Ext.R1(c), which is a copy of the sale deed, is also produced. 6. The version of the learned Government Pleader is sought to be opposed by the learned counsel for the petitioner by making a reference to Ext.P1 order itself (passed by the 1[st] respondent), wherein reference is made to the agreement produced between the petitioner, his sister and mother on one W.P.C. No. 20931 of 2012 -5- side and the builder by name M/s. Yasoram Construction Company on the other side, referring to the proportion of the built up area allowable to both the sides as mentioned above. It is also pointed out that the petitioner had appeared before the appellate authority and had submitted Ext.P11 argument notes which was very much available on files, when Ext.P12 order was passed. The petitioner was let known that he will be intimated in the due course and that it is without any regard to the actual facts and figures, that an observation was made by the appellate authority in Ext.P12, that the petitioner had not appeared for the hearing scheduled 'four years ago', leading to Ext.P12 order, simply dismissing the appeal. 7. After hearing both the sides, this Court finds that the matter requires to be reconsidered by the 2[nd] respondent, more so in the light of the law declared by this Court as per the decision cited supra. Accordingly, Ext.P12 is set aside and the second respondent is directed to reconsider the matter with reference to the actual facts and figures and also the law in **Pavan Kumar v. State of Kerala** (2012 (2) KLT 889), which W.P.C. No. 20931 of 2012 -6- shall be done after giving an opportunity of hearing to the petitioner and also considering the materials on record before the 1[st] respondent. The proceedings as above shall be finalized at the earliest, at any rate within 'three months' from the date of receipt of a copy of this judgment. It will be open for the second respondent to call for further materials in accordance with the relevant provisions of law, with regard to the claim of the petitioner under explanation (II) to Section 2(e) of the Kerala Building Tax Act, 1975. The writ petition is disposed of. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-