VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is filed by the petitioners in W.P. (C) No. 24527/2008. The Writ Petition was filed for quashing Ext. P4 order and Order No. 4361/05/J/K. Dis. dated 8.3.2007 passed by the 3rd respondent appellate authority and to issue a writ of mandamus or any other writ, commanding the 4th respondent assessing authority to reassess the building tax in accordance with law. The appellants are the promoters of a residential complex namely, Poonchoni Gardens at Chengannur, a building consisting of 30 flats, separate units, was constructed in Survey Nos. 230/4, 230/13 and 231/8 in Block No. 18 of Chengannur Village, utilising the funds of the prospective purchasers, after entering into written agreements with them. Separate sale deeds were executed in favour of each purchaser, assigning the title over the respective flats and over 1267/36280 undivided shares in the property wherein the flats situate. Each flat is a separate residential building for all purposes. The apartment complex is comprised of separate units and each unit is independently being held by the respective owner. The 4th respondent had assessed the residential complex as a single unit as per Ext. P1 order dated 1.3.2004, directing the appellants to pay an amount of Rs. 7,36,200/-. Ext. P2 demand notice was also issued to them, directing to pay the amount. The appellants submitted Ext. P3 reply, stating that the building was incomplete and that the building is not a commercial building, but a residential building and also requesting to assess each residential unit separately and fix the tax accordingly. Thereafter, the appellants remitted an amount of Rs. 1,84,050/-, being the first instalment payable and filed an appeal before the third respondent. The third respondent found that the plinth area of the building is not 4243.65 m2 but 4718.9 m2 and remanded the matter to the assessing authority to re-assess the building tax. Accordingly, the 4th respondent issued a fresh order of assessment, fixing the tax payable as Rs. 8,22,600/-, deducting Rs. 1,84,050/- already remitted, directing to remit the balance amount. Thereafter, the appellants remitted Rs. 21,600/- and again filed an appeal against that order before the third respondent. The third respondent, had by order dated 8.3.2007, found that the building is a residential building and that has to be treated as a single unit and directed respondent No. 4 to assess the tax accordingly, by setting aside the earlier order passed by the assessing authority and remanded the same for that purpose. The order passed by the 4th respondent was not served on the appellants. After remand, the 4th respondent had issued notice to their advocate, who appeared for them earlier and without giving any opportunity on the basis of the orders of the third respondent, assessed the building tax and passed Ext. P4 order, fixing the tax payable as Rs. 5,40,600/-, deducting Rs. 2,05,650/- already remitted and directing to pay Rs. 3,34,950/- towards building tax in four instalments and imposing luxury tax @ Rs. 2,000/- for the year 2003-04. Aggrieved by the same, the appellants filed the Writ Petition before this court, to quash the order passed by the third respondent and also for issuing a writ of mandamus directing the 4th respondent to reassess the building in accordance with law.

(2.) A counter affidavit was filed on behalf of the third respondent, contending as follows: The petition is not maintainable. The petitioners constructed a building in Survey Nos. 230/4, 230/13 and 231/8 in Block No. 18 of Chengannur Village. The 4th respondent Tahsildar, who is the assessing authority, assessed the building and an amount of Rs. 7,36,200/- was imposed towards tax for a plinth area of 4243.65 m2 under category "other building" as per Ext. P1 order No. BT-179/03 dated 1.3.2004. Aggrieved by the order, the assessee preferred an appeal before the appellate authority and the appellate authority, after considering the same, directed reassessment of the building, fixing the plinth area as 4718.9 m2 on the basis of the inspection conducted by respondents 3 and 4. Accordingly, the assessing authority, after enquiry, passed a revised assessment order. The assessee again preferred an appeal against the revised order of assessment before the third respondent. A hearing notice was served on the petitioners on 13.2.2007 to attend the hearing on 17.2.2007, but they were not present on that day and the case was adjourned to 7.3.2007. On 7.3.2007 also, the petitioners were not present, however, on 8.3.2007, the counsel for the appellants filed argument notes. After considering the notes of argument submitted by the counsel for the assessee and the report of the Tahsildar and other reliable records produced by the appellants (appellants have produced 25 agreements alleged to have been entered into between the prospective purchasers and the assessees in respect of each flat in the complex, the accounts alleged to be maintained by the appellants regarding payment of the amount towards the cost of construction by each prospective purchaser and also the assignment deeds executed by the appellants in favour of the persons, who executed the agreements with a view to prove that it is a separate unit to be assessed as the purchasers have contributed the amount for the construction of each flat), the appellate authority found that those documents are not sufficient to prove the case of the assessee and treated the building as a single unit and remanded the case to the assessing authority to assess the building as a single unit. Thereafter, the 4th respondent conducted a hearing on 18.4.2007 and 26.6.2007 and assessed the building as a single unit and imposed a tax of Rs. 5,40,600/- and also a luxury tax of Rs. 2,000/- for the year 2003-04. There is nothing on record to show that the assessees will come under Explanation (2) to S. 2(e) of the Kerala Building Tax Act (hereinafter referred to as the Act) and so, the authority was perfectly justified in assessing the amount as done and no interference is called for and prayed for dismissal of the Writ Petition.

(3.) After hearing both sides, the learned single Judge, by the impugned order, found that there is nothing on record to show that the building was constructed by utilising the amounts contributed by the prospective purchasers so as to treat this as different units in respect of those purchasers and dismissed the Writ Petition. The learned single Judge also found that there is no violation of the principles of natural justice as notice had been issued and opportunity of hearing had been afforded to the appellants and in spite of that, the appellants failed to prove their case. Aggrieved by the same, the present appeal is filed by the appellants, dissatisfied petitioners.