THARU Vs. TAHSILDAR

JUDGEMENT

(1.) The petitioner is challenging the building tax assessment issued by the first respondent in the prescribed form vide Ext. P13. The petitioners case is that the petitioner along with his daughter and granddaughter jointly owned 21 cents of land wherein the assessed building was constructed by a firm of Builders, namely, Mansion Builders, with whom the petitioner and other coowners entered into an agreement for development of the land and for construction of flats. After entering into agreement with the land owners, the Builders entered into separate agreements with various persons, developed the property, constructed and delivered possession of residential apartments to those persons who advanced amounts for the construction of flats. Thereupon proportionate undivided right in land was assigned to respective flat owner by the petitioners and with the purchase of undivided right of land, each flat owner became the absolute owner of the flat. The apartment complex consists of 12 apartments in three floors and one godown and one car parking area in the cellar floor. According to the petitioner, the petitioner is not the owner of the building as such and only owns a part of the building and the other flats are constructed by the builder under agreement with flat owners, and so much so each flat of the building has to be assessed in the name of respective owner of the flat in terms of definition contained in Explanation.2 to S.2(e) of the Kerala Building Tax Act, hereinafter called the Act. Eventhough the petitioner has sent various letters and representations and produced documents before the Tahsildar, he does not appear to have considered any of these. The assessment order itself is in Form No. V prescribed under R.9(1) of the Kerala Building Tax Rules. Since it is a printed form with blanks filled with relevant data, the same does not contain reasons in support of the assessment and demand of tax.

(2.) I heard Sri. N. Subramaniam, counsel for the petitioner, and Government Pleader for the respondents.

(3.) Various contentions raised in the Original Petition are serially dealt with hereunder. In the first place, the petitioners contention is that the assessment in Form V without assigning any reasons for demand of tax is absolutely arbitrary and violative of principles of natural justice. The petitioner has also relied on the decision of this Court in The District Registrar v. M/s. Lake Paradise, reported in ILR 2001 (3) Ker. 515 and contended that from the impugned order itself, it is clear that there is no application of mind or consideration of contentions of the petitioner, and therefore the assessment is liable to be set aside on that ground alone. I am in complete agreement with the argument of counsel for the petitioner because the assessment in Form No. V without giving reasons for the order should be only an assessment in terms of S.9(1) of the Building Tax Act whereby the assessing authority on receipt of return finds that the return is correct in all respects and passes an order in terms of the return assessing the building and demanding the tax. It is only when an assessment is completed in terms of the return and when an adverse order is passed against the Building owner; the assessee, the assessment could be issued in Form V in terms of S.9(1) of the Act. If the assessee; the owner of the Building does not file a return or if the return filed is found to be incorrect by the assessing officer, the assessing officer is bound to issue notice under S.9(2) calling upon the assessee to file return; if no return is filed and if return is filed, to furnish evidence in support of it. Sub-s. (3) of S.9 provides that the assessing officer shall hear the petitioner, consider the evidence and after calling for further evidence, if necessary, and after conducting inspection, shall pass assessment order giving reasons for the same. Whether the assessing officer passes an order under S.9(3) after hearing the petitioner, or if an assessment is to be completed under S.9(5) as best judgment assessment on account of non cooperation of the assessee, in either case, the assessing officer has to give reasons for his order. Since the assessee has a right of appeal under S.11 of the Act, it is mandatory for the assessing officer to give reasons in support of his assessment so that the appellate authority can consider the appeal with reference to the reasons based on which the assessment order is issued by the assessing officer. Eventhough the statute does not provide for issue of pre - assessment notice, I feel if such a notice is issued by the assessing officer, the same will afford an opportunity to the assessee to file written reply objecting to the proposal for assessment so that assessment can be completed after considering all issues raised in the matter. Therefore in order to complete the assessment in accordance with S.9 and in a fair manner, and in compliance with rules of natural justice, the assessing officer has to comply with the following procedure.