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High Court of KeralaWP(C)/38603/2015disposed of

Cordial Foundation v. Tahsildar

2015-12-18Honourable Dr. Justice A.K.Jayasankaran Nambiar6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 18TH DAY OF DECEMBER 2015/27TH AGRAHAYANA, 1937 ---------------------------- PETITIONER :

---------------------- CORDIAL FOUNDATION KINGS TOWER, MUKKOLACKAL, KAZHAKKOOTTAM TRIVANDRUM, REPRESENTED BY ITS PARTNER N.AYYAPAN UNNITHAN.

BY SENIOR ADVOCATE DR.S.GOPAKUMARAN NAIR BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T. ELENJICKAL SRI.P.A.MOHAMMED SHAH SRI.K.NANDAKUMAR SMT.MARY RESHMA GEORGE RESPONDENT(S) :

----------------------------

1. TAHSILDAR TALUK OFFICE, THIRUVANANTHAPURAM-695001.

2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.

3. THE REVENUE DIVISIONAL OFFICER THIRUVANANTHAPURAM-695001 THE APPELLATE AUTHORITY (UNDER THE KERALA BUILDING TAX ACT, 1975).

R1 TO R3 BY GOVT. PLEADER SRI. R. RANJITH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mn ...2/-

---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS :

----------------------------------------- EXHIBIT P1(a):

TRUE COPY OF SALE AGREEMENT IN FAVOUR OF APARTMENT OWNERS DATED 8.11.2008.

EXHIBIT P1(b):

TRUE COPY OF SALE AGREEMENT IN FAVOUR OF APARTMENT OWNERS DATED 28.8.2008.

EXHIBIT P1(c):

TRUE COPY OF SALE AGREEMENT IN FAVOUR OF APARTMENT OWNERS DATED 16.7.2008.

EXHIBIT P1(d):

TRUE COPY OF SALE AGREEMENT IN FAVOUR OF APARTMENT OWNERS DATED 16.7.2008.

EXHIBIT P1(e):

TRUE COPY OF SALE AGREEMENT IN FAVOUR OF APARTMENT OWNERS DATED 13.8.2008.

EXHIBIT P2(a):

TRUE COPY OF THE CONSTRUCTION AGREEMENT SIGNED BY PARTY DATED 8.11.2008.

EXHIBIT P2(b):

TRUE COPY OF THE CONSTRUCTION AGREEMENT SIGNED BY PARTY DATED 28.8.2008.

EXHIBIT P2(c):

TRUE COPY OF THE CONSTRUCTION AGREEMENT SIGNED BY PARTY DATED 16.7.2008.

EXHIBIT P2(d):

TRUE COPY OF THE CONSTRUCTION AGREEMENT SIGNED BY PARTY DATED 16.7.2008.

EXHIBIT P2(e):

TRUE COPY OF THE CONSTRUCTION AGREEMENT SIGNED BY PARTY DATED 13.8.2008.

EXHIBIT P3:

TRUE COPY OF THE ONLINE REMITTANCE OF SERVICE TAX FOR A PERIOD FROM APRIL TO SEPTEMBER 2011.

EXHIBIT P4:

TRUE COPY OF THE NOTICE NO.13126/14 DATED 6.7.2015. EXHIBIT P5:

TRUE COPY OF THE ABOVE REPLY ACKNOWLEDGED BY THE OFFICE OF THE TAHSILDAR WITH THIER OFFICE INWARD NUMBER D4/49227/15.

EXHIBIT P6:

TRUE COPY OF THE DEMAND NOTICE DATED 9.9.2015. EXHIBIT P7:

TRUE COPY OF THE PROCEEDINGS.

(Contd...)

EXHIBIT P8:

TRUE COPY OF THE PETITION.

EXHIBIT P9:

TRUE COPY OF THE REPLY SENT BY THE TAHSILDAR LETTER NO. D4.59659/15 DATED 11.11.2015.

EXHIBTI P10: TRUE COPY OF ONE SUCH ORDER OF THE GOVERNMENT OF KERALA NO.G.O (ORDER) NO.3006/11/REVENUE DATED TRIVANDRUM 14.7.2011. EXHIBIT P11: TRUE COPY OF THE ORDER DATED 1511/12. RESPONDENT(S)' EXHIBITS : NIL ------------------------------------------------------------- //TRUE COPY// P.A. TO JUDGE Mn

A.K.JAYASANKARAN NAMBIAR, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.38603 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December 2015

JUDGMENT

The challenge in the writ petition is against Ext.P7 assessment order and Ext.P6 demand notice, that have been issued to the petitioner, assessing the building of the petitioner to building tax, under the Kerala Building Tax Act. The grievance of the petitioner in the writ petition is essentially that in Ext.P7 order, the 1st respondent assessing officer has proceeded on the assumption that the petitioner, in whose favour a building permit had been issued, was the owner of the building for the purposes of tax. It is the specific contention of the petitioner that the construction of the building was pursuant to contracts entered into between the petitioner, on the one hand, and various customers/prospective clients, on the other.

It is stated that as per the terms of the said contracts, there was a condition that the prospective buyers would advance certain amounts at periodic intervals to the petitioner, before the completion of the construction and the commencement of occupancy of the apartments in question.

W.P.(c).No.38603 of 2015 : 2 :

(e) of the Kerala Building Tax Act. The petitioner also relies on Exts.P10 and P11 orders of assessment, in respect of other buildings that were constructed on the basis of similar agreements as entered into between the petitioner and his customers, and submits that Ext.P7 order is illegal that it proceedings on an erroneous assumption of the factual situations. He would also rely on the decision of the Supreme Court in State of Kerala & Others v. Mammikutty [2015 (3) KHC 794(SC)].

2. I have heard the learned Senior Counsel Sri.Gopakumaran Nair, duly instructed by Sri.P.Chandrasekhar on behalf of the petitioner as also the learned Government Pleader on behalf of the respondents.

3. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, and finding that the matter requiring resolution is factual in that, the adjudicating authority would have to go into the contract entered into between the petitioner and his clients for the purposes of ascertaining whether the cost of construction of the building was met jointly by the various persons, who ultimately obtained ownership of apartments in the building, I am of the view that the petitioner must be relegated to his alternate remedy of filing an appeal against Ext.P7 order, before the 3rd respondent appellate authority, under the Kerala Building Tax Act. Taking note of the

W.P.(c).No.38603 of 2015 : 3 :

condition in the Act with regard to the payment of the tax amount as a pre-condition for maintaining the appeal, and finding that the assessment was only in September 2015, I deem it the interests of justice to direct that the petitioner need remit only the 1st instalment of the tax assessed by Ext.P7 order, and demanded in Ext.P6 notice, namely, Rs.5,35,650/-. Accordingly, if the petitioner prefers an appeal against the Ext.P7 order, within a period of two weeks from the date of receipt of a copy of this judgment, accompanied by a payment of an amount of Rs.5,35,650/-, the 3rd respondent appellate authority shall consider the appeal on merits and pass orders in the appeal, after hearing the petitioner within a period of two months thereafter. I make it clear that till such time as the appellate authority passes orders as directed, and communicates the same to the petitioner, recovery steps for recovery of the balance amount confirmed against the petitioner in Ext.P7 order and demanded in Ext.P6 notice, shall be kept in abeyance. The writ petition is disposed as above.

Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE sm/