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The Palakkad Shadi Mahal Trust v. the Tahsildar Palakkad

Kerala HC16 Dec 2014WP(C)/12299/2010

Case brief

AI extract

What is this about?

This writ petition challenged an order assessing a trust's building, partially constructed before 1992, for building tax on the entire area. The Court held that Section 5(4) applied only to constructions after February 10, 1992. Quashing the erroneous order, the Court directed the authority to pass a fresh assessment considering the applicable provision for additional constructions.

What did the court decide?

Ext.P9 order quashed; 1st respondent directed to pass a fresh assessment order within two months considering only additions post-1992.

The Palakkad Shadi Mahal Trust Vs the Tahsildar Palakkad — Kerala HC (2014) — LawSathi Research

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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 A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936

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WP(C).No. 12299 of 2010 (J)

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PETITIONER(S):

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THE PALAKKAD SHADI MAHAL TRUST, R.C. ROAD, PALAKKAD REPRESENTED BY ITS MANAGING TRUSTEE, P.A.Q. MEERAN.

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BY ADVS.SRI.S.M.UNNIKRISHNAN SRI.U.BALAGANGADHARAN

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RESPONDENT(S):

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1. THE TAHSILDAR, PALAKKAD.

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2. THE STATE OF KERALA, REPRESENTED BY SECRETARY (TAXES), SECRETARIAT TRIVANDRUM

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R, BY GOVERNMENT PLEADER SMT.LILLY.K.T.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.12299/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF THE ORDER DATED 14.10.1988.

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EXT.P2: COPY OF THE SANCTION ORDER FOR THE ADDITIONAL CONSTRUCTION.

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EXT.P3: COPY OF THE RETURN FILED BY THE PETITIONER.

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EXT.P4: COPY OF THE RE-ASSESSMENT NOTICE DATED 19.6.1996.

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EXT.P4(A): COPY OF THE RECEIPT FOR BUILDING TAX PAID BY THE PETITIONER DATED 6.8.96.

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EXT.P5: COPY OF THE JUDGMENT DATED 4.2.99 IN O.P.NO.11859/96.

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EXT.P6: COPY OF THE NOTICE ISSUED BY FIRST RESPONDENT DATED 29.9.08.

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EXT.P7: COPY OF THE ORDER DATED 16.10.2008 ISSUED BY THE FIRST RESPONDENT.

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EXT.P8: COPY OF THE OBJECTION DATED 6.11.2008 TO EXT.P7 FILED BY PETITIONER.

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EXT.P9: COPY OF THE NOTICE DATED NIL ISSUED BY THE 1ST RESPONDENT.

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RESPONDENTS EXHIBITS: NIL.

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//TRUE COPY//

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P.S. TO JUDGE

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A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C).NO.12299 OF 2010 (J) ----------------------------------Dated this the 16^th day of December, 2014

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J U D G M E N T

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The petitioner is stated to be a registered Charitable Trust that constructed a marriage hall in the year 1984 covering a plinth area of 1300 sq. mts. It is submitted that the said building was assessed to building tax on a plinth area of 1300 sq. mts. and tax due under the Kerala Building Tax Act, 1975, hereinafter referred to as the 'Act', was duly paid. It is the case of the petitioner that in 1987, additional constructions were proposed and the construction, to an extent of 292.35 sq. mts, was completed by 30.9.1993. Thereafter, when the petitioner was served with Ext.P4 notice dated 19.6.1996, proposing an assessment as per Section 5 (4) of the Act in respect of the additional constructions effected by it, it approached this Court through O.P.No.11859/1996, which was disposed by Ext.P5 judgment directing the 1^st respondent to consider the objections of the petitioner and pass a speaking order in the matter. The petitioner would submit that during the pendency of the said original petition, it had also effected a payment of Rs.15,000/- in compliance with the

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W.P.(C).NO.12299/2010

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direction dated 23.7.1996 of this Court in the said original petition. It would appear that, pursuant to Ext.P5 judgment of this Court, the 1^st respondent passed Ext.P9 order assessing the building of the petitioner to building tax in an amount of Rs.2,76,600/- on a plinth area of 1778.81 sq. mts. Ext.P9 is impugned in the present writ petition inter alia on the ground that it has sought to levy tax under the Act on the entire area covered by the building, including the area that was already subjected to assessment in the year 1984.

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A counter affidavit has been filed on behalf of the 1^st respondent wherein it is stated that the assessment to building tax in Ext.P9 order has been done only in respect of the additional constructions effected by the petitioner to the building that existed earlier in the property. A reading of the counter affidavit would indicate that the assessment has been done in terms of Section 5 (4) of the Act.

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I have heard Sri.U.Balagangadharan, the learned counsel appearing on behalf of the petitioner and Smt.Lilly.K.T., the learned Government Pleader appearing on behalf of the respondents.

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W.P.(C).NO.12299/2010

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On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I note that in the instant case, the assessment in respect of the additional constructions effected by the petitioner appears to have been done in terms of Section 5 (4) of the Act. A perusal of Section 5 (4) of the Act would clearly indicate that it would apply only in cases where the original construction, as well as the additional constructions, were effected after 10.2.1992, the date on which the basis of assessment was changed from the capital value method to a plinth area based assessment. In the instant case, the facts would indicate that the building originally constructed by the petitioner had been subjected to an assessment in 1984. If that be so, then, it follows that an additional construction effected by the petitioner after 1992 could be assessed to building tax only in terms of Section 5 (3) of the Act and not in terms of Section 5 (4) of the Act. Ext.P9 order passed by the 1^st respondent is not clear on this aspect of the matter. In my view, it would be incumbent upon the 1^st respondent to give details with regard to the constructions effected by the petitioner and limit the assessment to building tax now, to only such additional constructions as were put up after 10.2.1992. In order to enable the 1^st respondent

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W.P.(C).NO.12299/2010

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to redo the assessment in respect of the additional constructions put up by the petitioner, I quash Ext.P9 order and direct the 1^st respondent to pass a fresh order of assessment in respect of the additional constructions put up by the petitioner after 10.2.1992. The 1^st respondent shall pass an order as directed within a period of two months from the date of receipt of a copy of this judgment, after affording the petitioner an opportunity of being heard and giving credit to the amounts paid by the petitioner pursuant to the interim order passed by this Court in O.P.No.11859/1996.

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The writ petition is disposed as above.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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prp

The Palakkad Shadi Mahal Trust v. the Tahsildar Palakkad

Case brief

What is this about?

What did the court decide?

The Palakkad Shadi Mahal Trust v. the Tahsildar Palakkad

Case brief

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What did the court decide?

What the court decided

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