Allowed

M.Moideenkuty v. Assessment Officer/Asst.Labour Officer

Kerala HC26 May 2008OP/8560/2002

Case brief

AI extract

What is this about?

The petitioner sold property and challenged a cess assessment order claiming no liability after disposal. The court found the order issued in a printed form without addressing objections violated natural justice and quashed it.

What did the court decide?

Ext.P5 order quashed; petitioner entitled to reimbursement of amount paid; respondents open to make fresh assessment with speaking order.

M.Moideenkuty Vs Assessment Officer/Asst.Labour Officer — Service and Employment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930

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OP.No. 8560 of 2002(R) ----------------------

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PETITIONER:

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M.MOIDEENKUTTY, MANAGING PARTNER, MALARVADI ENTERPRISES, "MALARVADI", CIVIL STATION P.O., CALICUT-9.

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BY ADV. SRI.C.P.MOHAMMED NIAS

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RESPONDENTS:

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ASSESSMENT OFFICER/ASST.LABOUR OFFICER GRADE I, BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT 1996, CIVIL STATIION, KOZHIKODE.

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THE SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFERE BOARD, POOJAPPURA P.O., TRIVANDRUM.

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THE SECRETARY, APARTMENT OWNERS ASSOCIATION, "GATEWAY RESIDENCY",CIVIL STATION P.O CALICUT-673 020.

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M/S.CORPORATE BUILDERS, K.V.KUTTY BUILDINGS, NADAKKAVU CROSS ROAD, CALICUT-11, REP.BY ITS MANAGING PARTNER.

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BY ADV. SRI.K.M.SATHYANATHA MENON FOR R4 GOVT. PLEADER SHRI.P.N.SANTHOSH

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.8560/02.

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				APPENDIX
PETI	TIONER'	S EXHI	BITS:
P1. DTD.	COPY 16.2.99	OF THE .	ASSIGNMENT	DEED IN FAVOUR OF ONE ARUN MENON
P2.	COPY	OF THE	TRIPARTITE	AGREEMENT.
P3.	COPY	OF THE	ASSESSMENT	NOTICE DTD.2.2.02.
P4.	COPY	OF THE	REPLY TO R1	DTD.16.1.02.
P5.	COPY	OF THE	ORDER BY R1	DTD.30.1.02.

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Sdk+

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///True copy///

P.A. to Judge

S.SIRI JAGAN, J.

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O.P. No.8560 of 2002

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Dated this the 26^th day of May, 2008 J U D G M E N T

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The petitioner claims that he has sold certain properties to the 4^th respondent, in which the 4^th respondent constructed flats and sold it to intending purchasers. According to the petitioner, once he has parted with the title to the property, he cannot be made liable for cess under the Building and Other Construction Workers Welfare Cess Act, 1996, in respect of the flats constructed thereon. The petitioner was served with Ext.P3 preassessment notice to which the petitioner filed detailed objections, Ext.P4. The grievance of the petitioner in this original petition is that in spite of the same, Ext.P5 order has been passed in a printed form without referring to any of the contentions raised by the petitioner in Ext.P4 objections. The petitioner, therefore, challenges Ext.P5 on the ground of violation of principles of natural justice.

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No counter affidavit has been filed. The learned Government Pleader submits that the Corporation has reported

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o.p.8560/02

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that the entire building tax has been paid by the petitioner and, the petitioner is the one liable to pay cess under the Act.

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I have considered the parties at length.

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I am of opinion that issue of pre-assessment notice is

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not an empty formality. The same is issued to a party to enable him to place his contentions against the proposed assessment on record. When in reply to the pre-assessment notice, the party files objections disclaiming liability to pay the same on specific contentions, the assessing authority has a duty to consider each and every contention of the party and enter a finding either against or in favour of the party to whom pre-assessment notice is issued. In this case, to Ext.P3 pre-assessment notice the petitioner has filed Ext.P4 reply specifically contending that he has sold the property to the 4^th respondent in which the 4^th respondent had constructed building and, therefore, the petitioner has no liability whatsoever to pay cess under the Act. Ext.P5 order is in a printed form filling up blank spaces. The

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same does not reveal that any of the contentions of the petitioner has been dealt with and specific findings entered thereon, which is the cardinal requirement of principles of natural justice.

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o.p.8560/02 3

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Therefore, I am satisfied that Ext.P5 is violative of principles of natural justice. Accordingly, Ext.P5 is quashed. If any amount has been paid pursuant to Ext.P5, the petitioner is entitled to reimbursement of the same. However, it would be open to the respondents to make fresh assessment after affording an opportunity of being heard to the petitioner and entering specific finding on each and every contention of the petitioner by a speaking order.

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The original petition is allowed of as above.

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sdk+

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Sd/S.SIRI JAGAN, JUDGE

///True copy///

P.A. to Judge

o.p.8560/02

S.SIRI JAGAN, J.

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O.P. No.8560 of 2002-R

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===============

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J U D G M E N T

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26^th May, 2008

M.Moideenkuty v. Assessment Officer/Asst.Labour Officer

Case brief

What is this about?

What did the court decide?

M.Moideenkuty v. Assessment Officer/Asst.Labour Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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