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C.P.Sivaraj v. the Appellate Authority

Kerala HC17 Feb 2016WP(C)/1186/2016

Case brief

AI extract

What is this about?

The High Court of Kerala, in this writ petition challenging a building tax assessment order and an appellate dismissal for lack of deposit, directed the assessing authority to reconsider the petition. The court quashed the assessment order, relying on Supreme Court decisions regarding co-owner contributions and luxury tax principles, and ordered a fresh assessment based on separate apartment evalu

What did the court decide?

Quashed Ext.P6 assessment order; directed second respondent to pass fresh orders considering separate apartment assessment within three months.

C.P.Sivaraj Vs the Appellate Authority — Municipal and Town Planning | Kerala HC (2016)

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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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WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937

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WP(C).No. 1186 of 2016 (W)

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PETITIONER:

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C.P.SIVARAJ, AGED 62 YEARS, S/O.LATE ANANDAN, SIVSAKTHI, KAKKAD, KANNUR.

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BY ADVS.SRI.V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL

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RESPONDENT(S):

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1. THE APPELLATE AUTHORITY,

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UNDER THE BUILDING TAX ACT

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(REVENUE DIVISIONAL OFFICER),

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SUB COLLECTOR'S OFFICE,

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THALASSERY-670 101.

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2. THE ASSESSING AUTHORITY, UNDER THE BUILDING TAX ACT,

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(THE TAHSILDAR, KANNUR),

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CIVIL STATION, KANNUR-670 001.

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BY GOVERNMENT PLEADER SRI.LIJU V.STEPHEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 1186 of 2016 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 : TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.

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P2 : TRUE COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE COUNSEL FOR THE PETITIONER.

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P3 : TRUE COPY OF THE MEMORANDUM OF APPEAL DT 22-7-2014.

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P4 : TRUE COPY OF THE AFFIDVIT IN SUPPORT OF THE CONDONATION OF DELAY.

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P5 : TRUE COPY OF THE ORDER DATED 23-7-2015 ISSUED BY THE FIRST RESPONDENT.

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P6 : TRUE COPY OF THE ORDER OF ASSESSMENT DATED 9.5.2014 PASSED BY THE ASSESSING AUTHORITY.

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P7 : TRUE COPY OF THE JUDGMENT DATED 4.1.2012 IN WP(C)NO.33515/2011.

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P8 : TRUE COPY OF THE ASSESSMENT REGISTER IN RESPECT OF WARD NO.35 OF THE KANNUR MUNICIPALITY ISSUED BY THE LOCAL AUTHORITY.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 1186 of 2016

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===================================================== Dated this the 17^th day of February, 2016

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JUDGMENT

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The challenge in the writ petition is against Ext.P5 order of the first appellate authority, which dismissed an appeal preferred by the petitioner against Ext.P6 order of assessment, on the ground that the appeal filed is not supported with the deposit of the amounts confirmed against the petitioner by the assessment order, which is the prerequisite for maintaining the appeal before the appellate authority. In the writ petition, the petitioner also impugns Ext.P6 assessment order, on the ground that the assessing authority did not take into account the material produced by the petitioner before him, for the purposes of arriving at a conclusion with regard to the liability of the petitioner for building tax under the Kerala Building Tax Act.

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I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, and taking note

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-2-

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W.P.(C). No.1186 of 2016

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of the documents produced before me, and in particular Ext.P8 series of assessment records pertaining to the property tax assessment for the various apartments in the same building, I am of the view that the matter requires a reconsideration at the hands of the assessing authority. Accordingly, I quash Ext.P6 order of assessment and direct the 2^nd respondent assessing authority to consider and pass fresh orders of assessment in relation to the building of the petitioner, after taking note of the materials produced by the petitioner in this writ petition as also other material relied upon by the petitioner to substantiate his contention that separate apartments in the building have to be assessed separately and not as one single unit for the purposes of building tax assessment. The 2^nd respondent shall also take note of the later decision of the Hon'ble Supreme Court in State of Kerala and others v. A.P.Mammikutty [2015 (10) SCC 632] that was rendered in the context of luxury tax as also the decision in Tahsildar and another v. Soman Peter (Dr.) [ILR 2014 (4) Kerala 327] with regard to the manner in which the cost of construction has to be jointly met by all the co-owners of the building. The 2^nd respondent shall pass fresh orders of assessment in relation to the

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W.P.(C). No.1186 of 2016

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building of the petitioner, after hearing him, within a period of three months from the date of receipt of a copy of this judgment.

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The writ petition is disposed as above.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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das /17.02.2016

C.P.Sivaraj v. the Appellate Authority

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C.P.Sivaraj v. the Appellate Authority

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