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2011 DIGILAW 955 (KER)

Abraham Thomas, S/o. N. J. Thomas v. State Of Kerala, Represented By The Secretary Revenue Department

2011-08-29

S.SIRI JAGAN

body2011
JUDGMENT : S. SIRI JAGAN, J. 1. The petitioners are owners of separate portions of an apartment complex. According to them, they are joint owners of the property on which the apartment complex has been constructed and as per an agreement among them, they have decided to contribute their shares for construction of separate portions of the apartment complex. Therefore, according to them, the separate portions owned by each of them is liable to be assessed for building tax under the Kerala Building Tax Act, separately. But instead, by Ext.P41 order, the entire apartment complex has been assessed as one building and Ext.P42 demand notice has also been issued. The petitioners contend that the assessment order does not contain any reference to their contentions. They have also produced documents to prove their contentions that the separate portions of the apartment complex owned by each of them were constructed as per an agreement pursuant to which each of them contributed their shares for construction of the portions owned by them separately. According to the petitioners, none of these documents or the contentions of the petitioners have been considered by the assessing authority in Ext.P41 assessment order. They point out that except the names of the petitioners, the area and the amount of tax, the assessment order does not contain any reason whatsoever or the method of assessment even. The petitioners rely on the following decisions of this Court, wherein, this Court has specifically stated that the assessment orders should contain specific reasons especially when objections are filed: Tharu v. Tahsildar [ 2003 (1) KLT 219 ], Bavasons Constructions (P) Ltd v. State of Kerala [ 2007 (3) KLT 101 ], District Collector v. Sreekumari Kunjamma [ 2011 (1) KLT 248 (F.B.)] 2. I have heard the learned Government Pleader who would contend that Ext.P41 assessment order has been passed after considering all the contentions of the parties. 3. I have considered the rival contentions in detail. 4. As rightly pointed out by the counsel for the petitioners, Ext.P41 assessment order contains only some printed sentences wherein the names of the petitioners, the area and the amount of the tax only have been filled up. There is absolutely no reason stated therein. It also does not disclose the method of assessment. I am also of opinion that, passing of assessment orders under the Kerala Building Tax Act cannot be a mechanical process. There is absolutely no reason stated therein. It also does not disclose the method of assessment. I am also of opinion that, passing of assessment orders under the Kerala Building Tax Act cannot be a mechanical process. The assessing authority should apply his mind to the contentions of the parties and the assessing order on the face of the same should disclose such application of mind giving reasons for the same. In Ext.P41 printed form of order the assessing authority has not even scored off the portions which are not applicable to the petitioners, which itself shows total non-application of mind. I have in one decision held that while passing assessment orders under the Kerala Building Tax Act, the assessing authority should not mechanically follow the form of assessment order prescribed in the rules. If there is no space provided for giving reasons in the printed form, the reasons should be appended to the assessment order in a separate sheet. In view of the fact that Ext.P41 assessment order does not contain any reasons whatsoever, I am of opinion that, it amounts to violation of principles of natural justice. Accordingly, Ext.P41 assessment order and Ext.P42 demand notice pursuant to the same are quashed. The assessing authority, namely the 2nd respondent herein, is directed to pass fresh assessment orders in accordance with the observations contained herein as well as the principles in the decisions of this Court referred to above, expeditiously, after considering the documents produced by the petitioners and their contentions with an opportunity of being heard to them.