SIYAVUDEEN A Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants, who are the petitioners, filed the writ petition challenging the assessment of the building comprising of the flats constructed by them individually; as a single building. The learned Single Judge dismissed the writ petition on the ground that the petitioners having not filed an appeal as provided under the Kerala Building Tax Act within the period or the extended period provided therein, the petitioners cannot seek resurrection of a time barred cause of action under Article 226 of the Constitution of India. The Kerala Building Tax Act has provided a period of limitation of thirty days for the filing of an appeal and has provided a further extended period of six months for entertaining a belated appeal with sufficient cause for the delay. The delay of limitation having run out, a Division Bench of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval, 2005 4 KerLT 947has held that the discretionary remedy under Article 226 cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant. The said proposition of lay cannot be doubted and the Supreme Court has also consistently held so. However, the Learned Counsel for the appellant would urge that the respondents in the instant case has exercised their authority in excess of the jurisdiction conferred under the Kerala Building Tax Act and has issued orders beyond the scope of the Act.

(2.) The appellants would contend that they separately own three apartments in the building, the plan of which is produced as Exhibit P1. Exhibits P3, P5 and P7 are the sale deeds in respect of the three appellants, which would show separate title, possession and enjoyment of three apartments in the said building. The appellants have also produced other documents evidencing the construction by their own funds, which we are at present not inclined to look into. However, the appellants contend that immediately after the construction was over, the appellants were served with individual notices, Exhibits P14, P15 and P16, in Form III of the Kerala Building Tax Rules, calling upon them to file returns with respect to the individual apartments owned by them. In pursuance of the notice, the appellants had filed Exhibits P17, P18 and P19 returns, declaring the area covered by each of the apartments, specifically admitting the liability under the Act. In pursuance of the return, the appellants were issued with individual notices, Exhibits P19(A), P19(B) and P19(C) notifying inspection of the site on 12.7.2006 as also specifying that the records are to be produced. The assessees contend that without the inspection as notified in Exhibits P19(A), P19(B) and P19(c) and without a hearing, an order of assessment under the Act was passed in Form V by Exhibit P20, assessing the building as one single unit and computing the tax for the entire plinth area. The order of assessment was issued citing the name of all the owners in the same order. A consequential demand notice was also issued, which is produced as Exhibit P21. Exhibits P22 to P26 are the various representations filed by the appellants before the authorities under the Act and also the concerned Minister.

(3.) The appellants' contention is that the separate apartments were constructed individually and is possessed and enjoyed separately by each of the owneRs. We notice that the notice issued under the Act was to each of the individual owners with respect to the flats in which they have title and the returns were also filed by the individual owneRs. Even in pursuance of the returns, notice of inspection was also served on the individual owners separately. However without any inspection or further verification of the records, a single assessment order was passed taking the entire plinth area for a single assessment under the Act taking the apartment building as a single unit for the purpose of assessment under the Act. We also notice that the Form III notices as also the inspection notices contained separate building numbers of each of the appellants. The representation made by the appellants to the Tahsildar who passed Exhibit P20 order also would show that there was no inspection as notified under Exhibits P19(A), P19(B) and P19 (C) and the order Exhibit P20 was passed without verification of the documents sought for by the assessing authority and kept ready by the appellants.