Quashed

Skyline City Part Apartment Owners Asstn v. Tahsildar and Assessing Authority

Kerala HC1 Dec 2014WP(C)/1692/2009

Case brief

AI extract

What is this about?

The High Court of Kerala, holding that the assessment order failed to consider independent apartment ownership, quashed the assessment order and demand notice. The court directed the authorities to pass fresh orders treating the building as separate units after issuing notices to the builder and individual owners, adhering to relevant precedents.

What did the court decide?

Exts.P2 and P3 (assessment order and demand notice) quashed. Fresh orders to be passed within three months after issuing notices to the builder and individual owners.

Skyline City Part Apartment Owners Asstn Vs Tahsildar and… — Landlord and Tenant | Kerala HC (2014)

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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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MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936

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PETITIONER(S):

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SKYLINE CITY PARK APARTMENT OWNERS ASSOCIATION, JAWAHAR NAGAR, KADAVANTHRA KOCHI - 682 020, REPRESENTED BY ITS SECRETARY MR.I.V.RAJU, RESIDING AT 3A, SKYLINE OAKWOOD JAWAHAR NAGAR, KADAVANTHRA, KOCHI - 682 020.

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BY ADV. SMT.B. DHANYA

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RESPONDENT(S):

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TAHSILDAR AND ASSESSING AUTHORITY (UNDER THE KERALA BUILDING TAX ACT) KANAYANNUR TALUK.

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VILLAGE OFFICER, ELAMKULAM VILLAGE, KANAYANNUR TALUK

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BY ADV. GOVERNMENT PLEADER SMT. LILLY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1692 of 2009 (B)

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APPENDIX

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PETITIONER'S EXTS:

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EXT.P1: DETAILS OF APARTMENT OWNERS AND 168APARTMENTS ASSESSEDTO BUILDING TAX UNDER THE KERALA BUILDING TAX ACT

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EXT.P2: TRUE COPY OF ORDER OF ASSESSMENT NO. B1 975/2007 OF THE IST RESPONDENT ASSESSING AUTHORITY UNDER SECTION 9 (5) OF THE KERALA BUILDING TAX ACT ADDRESSED TO THE PETITIONER ASSOCIATION

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EXT.P3: DEMAND NOTICE (REF. NO. B1975/2007 ISSUED BY THE IST RESPONDENT ADDRESSED TO THE PETITIONER ASSOCIATION

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A.K.JAYASANKARAN NAMBIAR, J.

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W.P. C. NO.1692 of 2009 - B

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Dated this the I^st day of December, 2014

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JUDGMENT

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The petitioner is the Secretary of an Association of Apartment Owners. It is the case of the petitioner that three

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independent blocks of apartments were constructed by the builder and, thereafter, the ownership in those apartments were given to various individuals. It is also his contention that the undivided share in the land was conveyed to the various individual purchasers of the apartments and that they had also contributed towards the cost of construction of the apartment that was purchased by them. The assessment to building tax in respect of the buildings, however, was completed by treating the buildings as a single unit and not by treating them as separate apartments for the purpose of levy of tax. Ext.P2 is the assessment order that is served on the Association of Apartment Owners and Ext. P3 is the demand notice. In the Writ Petition, Exts.P2 and P3 are impugned inter alia on the ground that the

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W.P. C. NO. 1692 of 2009

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respondents are not justified in completing the assessment by treating the building as single unit, and not as separate apartments, for the purpose of taxation.

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A counter affidavit has been filed on behalf of the first respondent wherein it is stated that although a notice was issued to the representatives of the owners association, the said persons did not produce any details to show that the cost of construction was met by the individual owners of the apartments and also there was no document produced to establish the ownership of the separate persons in the various apartments. It was under these circumstances, that the assessment was completed by treating the building as a single unit for the purpose of assessing tax.

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I have heard Smt. Dhanya, B, the learned counsel for the petitioner and Smt. Lilly, the learned Government Pleader appearing on behalf of the respondents.

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On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that in Ext. P2 assessment order, there is no consideration of the issue

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W.P. C. NO. 1692 of 2009

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as to whether the building in question, which housed independent apartments, merited an assessment by treating it as a single unit or as separate apartments for the purposes of Kerala Building Tax Act. The order of assessment itself is shown as served on the Secretary of the Skyline City Park Apartment Owners Association, which would suggest that the respondents had recognized the building as comprising of individual apartments with separate ownership in each apartments. In that view of the matter, it was incumbent upon the respondents to state reasons in the assessment order as to why it chose to complete the assessment by treating the building as single unit for the purpose of assessment. Ext.P2 order does not reflect a consideration of any of the relevant factors for the purpose of assessment. In that view of the mater, I quash Exts.P2 and P3 assessment order and demand notice respectively, and direct the first respondent to pass fresh orders in the matter after issuing notices to the builder, as also the individual apartment owners through the Secretary of the Owners' Association. While passing fresh orders, the first respondent shall take note of the decisions of this Court in District Collector, Civil Station, Kakkanad and Others v. V.K. Sreekumari Kunjamma - 2011 (1) KLT 248 (FB), Varghese P.D. And Others v. State of Kerala and

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W.P. C. NO. 1692 of 2009

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Others - 2013 (2) KLT 831 (DB), Natarajan v. State of Kerala- 2013 (4) KLT 364 and Thahasildar & Another v. Soman Peter (Dr.) - ILR 2014 (4) Kerala 327 which lay down the principles to be followed by the Assessing Authority while assessing the building to tax in terms of Explanation 2 to Section 2 (e) of the Building Tax Act. The first respondent shall pass fresh orders as above within a period of three months from the date of receipt of a copy of this judgment. The order to be passed by the first respondent shall advert to the documents relied upon by the petitioner/Apartment Owners Association, and shall also state the reasons for the said decision.

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This Writ petition is disposed as above.

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Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE

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Ani/3/12/

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/true copy/

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P.S.to Judge

Skyline City Part Apartment Owners Asstn v. Tahsildar and Assessing Authority

Case brief

What is this about?

What did the court decide?

Skyline City Part Apartment Owners Asstn v. Tahsildar and Assessing Authority

Case brief

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What did the court decide?

What the court decided

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