Saidalavi K. T. v. The District Collector, Malappuram, The Tahsildar, Tirur, The Village Officer, Ponmala Chappanangadi, The State of Kerala, Represented by the Secretary to Government, Taxes Department

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944 ``` ## **`WP(C) NO. 10254 OF 2022`** ## **`PETITIONER:`** ``` SAIDALAVI K. T. AGED 68 YEARS S/O. KUNCHIKOYA MASTER, KUNNATHODI HOUSE, PUTHOOR P.O., KOTTAKKAL, MALAPPURAM - 679503. ``` ``` BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI A.HAROON RASHEED ``` ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR, MALAPPURAM, OFFICE AT CONFERENCE HALL, COLLECTRATE RD, UP HILL, MALAPPURAM - 676 505.`** - **`2 THE TAHSILDAR, TIRUR TIRUR MINI CIVIL STATION BUILDING, MALAPPURAM - 676 101.`** - **`3 THE VILLAGE OFFICER, PONMALA CHAPPANANGADI, MALAPPURAM – 676503.`** - **`4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.`** ## **`OTHER PRESENT:`** ``` SPL GP FOR TAX M.M. JASMIN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 10254 OF 2022 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J. =========================== W.P.(C) No.10254 of 2022 ============================ Dated this the 25[th] day of March, 2022 ## JUDGMENT Petitioner challenges Ext.P3 order of assessment issued under the Kerala Building Tax Act, 1975, (for short the Act). 2. According to the petitioner, the buildings in question are factory buildings, entitled for exemption from tax as per the provisions of Section 3(1)(d). It is also pleaded that, after petitioner was issued with a notice under Section 9(2) of the Act, a reply was given, pointing out that, from the notice, petitioner could not identify the particular building which was proposed to be taxed and hence he sought for a clarity on the notice issued. Disregarding the request of the petitioner and without any further communication, the Assessing Officer proceeded to issue an order of assessment dated 16.11.2020, imposing an amount of ``` WP(C) NO. 10254 OF 2022 ``` ``` 3 ``` Rs.17,31,600/- as one time building tax. 3. Shri.Jaju Babu, the learned Senior Counsel appearing for the petitioner submitted that, had the petitioner been intimated of the particular building that was proposed to be assessed to tax, he could have raised the contention that the buildings are factories, liable to be exempted under the provisions of the Act. Ignoring the request of the petitioner submitted as per Ext.P2, to give specific details of the building under assessment, the Assessing Officer proceeded to issue an order of assessment, practically copying the printed format attached to the statute. According to the learned Senior Counsel, this Court had been repeatedly directing the assessing authorities to issue proper orders of assessment, after application of mind to the factual situation arising in each individual case. Reference was invited to the decision in Abraham Thomas v. State of Kerala and others [2012 (2) KHC 792] , wherein this Court held that the assessment orders ought not to be issued on printed formats in a mechanical manner. ``` WP(C) NO. 10254 OF 2022 ``` ``` 4 ``` 4. The learned Senior Counsel also pointed out that had the Assessing Officer properly given an opportunity to the petitioner by informing the identity of the building, petitioner would have certainly raised the contention that the building is a factory. It was further contended that if petitioner had raised such a contention, the Assessing Officer loses his authority to assess the building since the issue ought to have been then referred to the Government for consideration. All such opportunities were denied and none of these matters were borne in mind by the Assessing Officer while issuing Ext.P3, thereby, clearly manifesting nonapplication of mind. 5. The learned Government Pleader, Smt. M.M.Jasmin, on the other hand, contended that in Ext.P9 letter the officer had specifically intimated the petitioner about the various notices issued for hearing and also conveyed that a license under the Factories and Boilers Act could not be produced by the petitioner, thereby, disentitling the petitioner to claim the benefit of the exemption ``` WP(C) NO. 10254 OF 2022 ``` ``` 5 ``` clause under the Building Tax Act, 1975. 6. Even going by the statements in Ext.P9, it is evident that the Assessing Officer was aware that there could possibly be a contention of the building being a factory, thereby disentitling him to proceed further with the consideration of assessment. 7. A perusal of Ext.P3 reveals that the Assessing Officer merely carried out the assessment on the printed format and did not properly apply his mind to the various contentions. Neither was a reference to Ext.P1 nor a reply to Ext.P2 or any other contentions available to the petitioner were referred in the impugned order. The order of assessment has been issued without application of mind. The decision in Abraham Thomas v. State of Kerala and others [2012 (2) KHC 792] is squarely applicable to the instant case. Therefore, Ext.P3 is perverse warranting interference by this Court under Article 226 of the Constitution of India. 8. In view of the above, I set aside Ext.P3 and direct the 2[nd] respondent to issue fresh orders in accordance with law, after ``` WP(C) NO. 10254 OF 2022 ``` ``` 6 ``` granting an opportunity to the petitioner to file an objection and after affording an opportunity of hearing. The needful shall be done as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment. The writ petition is allowed. Sd/BECHU KURIAN THOMAS JUDGE ssa ``` WP(C) NO. 10254 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 10254/2022`** ## **`PETITIONER’S EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE NOTICE VIDE NO.K3/19129/2017 DATED 16.06.2020 ISSUED BY THE 2ND RESPONDENT. ``` - **`Exhibit P2`** - **`TRUE COPY OF THE LETTER DATED 17.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.`** - **`Exhibit P3`** - **`TRUE COPY OF THE DEMAND NOTICE VIDE NO.K3/19129/2017 DATED 16.11.2020 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 17.12.2021 AND THE RECEIPT OF ACCEPTANCE.`** - **`Exhibit P5 TRUE COPY OF THE LICENSE GRANTED TO TIP TOP FURNITURE PVT. LTD. HAVING REGISTRATION NO.D15/MLP/08/423/2017 ALONG WITH STABILITY CERTIFICATE DATED 29.08.2018 ISSUED AS PER THE FACTORIES AND BOILERS ACT.`** - **`Exhibit P6 TRUE COPY OF THE LICENSE OF TIP TOP FURNITURE INDUSTRIES HAVING REGISTRATION NO.MLP/08/272/2004 ALONG WITH STABILITY CERTIFICATE DATED 29.08.2018 AS PER THE FACTORIES AND BOILERS ACT.`** - **`Exhibit P7 TRUE COPY OF THE LETTER NO.T1/10520/2015/F&B/R.DIS. DATED 22.12.2015 AND PERMIT VIDE NO.353/2015 GRANTED TO TIP TOP FURNITURE MART ALONG WITH STABILITY CERTIFICATE DATED 29.08.2018 AS PER THE FACTORIES AND BOILERS ACT.`** - **`Exhibit P8 TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT) NO.6195/12/RD DATED 02.11.2012.`** ``` WP(C) NO. 10254 OF 2022 ``` ``` 8 ``` ``` Exhibit P9TRUE COPY OF THE LETTER NO.K3-19129/2017 DATED 23.12.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. ```