The High Court allowed the writ appeal filed by the State, setting aside the Single Judge's order that waived interest for delayed building tax payments. The Court held that the Act contains no provision for waiving interest and the delay was solely the assessee's fault.
The judgment of the learned Single Judge regarding the waiver of interest was set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935 WA.No. 2366 of 2008 ( ) IN OP.32469/2000 ------------------------------------------
AGAINST THE ORDER/JUDGMENT IN OP 32469/2000 of HIGH COURT OF KERALA DATED 16-11-2007
APPELLANT(S)/RESPONDENTS IN O.P.: ---------------------------------
1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE TAHSILDAR (ASSESSING AUTHORITY), KERALA BUILDING TAX ACT, TELLICHERRY.
3. THE REVENUE DIVISIONAL OFFICER, (APPELLATE AUTHORITY UNDER KERALA BUILDING TAX, ACT) TELLICHERRY.
4. THE DISTRICT COLLECTOR, (REVISIONAL AUTHORITY UNDER KERALA BUILDING TAX ACT)KANNUR.
BY GOVERNMENT PLEADER SRI.SEBASTIAN CHEMPAPALLIL
RESPONDENT(S)/PETITIONERS IN THE O.P.:
1. M.C.SAINABA, D/O.ABDULLAKUTTY HAJI, AGED 40 YEARS, A.P.M.HOUSE, PADUVILAM AMSOM VENGAD DESOM, VENGAD.P.O, TELLICHERRY TALUK.
2. A.P.M.ABOOTTY, S/O.UMMERKUTTY, PADUVILAYI AMSOM, VENGAD DESOM, TELLICHERRY.
3. A.P.M.KUNHAMMED HAJI, RESIDING AT PADUVILAYI AMSOM, VENGAD DESOM, TELLICHERRY.
4. M.C.K.FOUSIYA, W/O.K.P.SADIQUE, RESIDING AT PADUVILAYI AMSOM, VENGAD DESOM TELLICHERRY.
R1 TO 4 BY ADV. SRI.CIBI THOMAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MANJULA CHELLUR, C.J & SHAFFIQUE, J.
W.A.No. 2366 of 2008
Dated this the 27th January, 2014 JUDGMENT
Manjula Chellur, C.J.
This appeal is filed by the State aggrieved by waiver of interest directed to be paid as per Exhibits P8 and P9 for not paying building tax on the respective due dates. Petitioner challenged assessment and demand of building tax pertaining to a shopping complex put up by them which became the subject matter of challenge in appeal and revision. However, before all the authorities, the owners were unsuccessful. The main stand of the writ petitioners was that construction of the building was over before 1989, therefore, the assessment itself was barred by limitation. However, this defence was rejected and according to learned Single Judge, Exhibit P1 document, which indicates acquisition of title by the writ petitioners was 18.11.1989, therefore, question of completing construction of the building prior to 1989 would not arise. As the building measures about 9565.2 sq. ft., definitely possibility of completion of the building
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within one month is out of question. Therefore, the learned Judge was of the opinion, for the sake of raising a defence, the writ petitioners raised such defence and it was apparent from the records that even after completion of the construction, writ petitioners resisted from filing any return of building tax declaring date of construction as required under Rule 5 of the Kerala Building Tax Rules, i.e., within two months from the date of completion of construction. Unless the owner of the property or the assessee comes forward with the required form filing returns indicating the date of completion of the construction of the building, it would not be within the knowledge of the authorities regarding the date of completion of the building. Therefore, the learned Judge was justified in rejecting the plea of limitation raised by the assessee. Though the writ petitioner did not challenge this finding of the learned Single Judge, we have to refer to these facts in order to opine whether there is justification in waiver of entire interest directed to be paid as per Exhibits P8 and P9. Paragraph 4 of the judgment impugned refers to the discussion pertaining to waiver of interest. Capital value method could not be adopted with the introduction of plinth area rate method. Plinth area method adopted for assessment was found to
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be justifiable. The building was let out, hence, reduction on payment of tax was not available. There was a stay order at the time of filing the Writ Petition. The delay in assessment was on account of not providing the correct date of completion of the building by the assessee. The stay granted by this Court was only after filing the Writ Petition and there was no stay earlier. Section 19 of the Kerala Building Tax Act, 1975 clearly indicates mode and time of recovery. When there is failure on the part of the assessee either to pay building tax or luxury tax on the due date, the arrears of tax has to be paid along with an interest at the rate of 6% from the date of default till payment. In the present case the entire fault was with the assessee in not filing return in time and further concealing the actual date of completion of construction of the building.
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WA.2366/08
Accordingly, the Writ Appeal is allowed setting aside the judgment of the learned Single Judge only in respect of waiver of interest.
MANJULA CHELLUR, CHIEF JUSTICE
SHAFFIQUE, JUDGE
vgs28.1.14
2 issues framed by the court
Whether interest charged under Section 19 of the Kerala Building Tax Act, 1975, could be waived despite the appellant's claim to the contrary.
Whether the High Court Single Judge was justified in directing the waiver of the entire interest amount.
1 provisions across 1 enactments
STATE OF KERALA
M.C.SAINABA
A.P.M.ABOOTTY
A.P.M.KUNHAMMED HAJI
M.C.K.FOUSIYA
DR MANJULA CHELLUR
A M SHAFFIQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
