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Section 2 in The Gift-Tax Act, 1958
The Gift-Tax Act, 1958

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Kerala High Court
Abdul Kareem vs State Of Kerala on 28 October, 2003
       

  

  

 
 
                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                           PRESENT:

                THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

                THURSDAY, THE 31ST DAY OF MAY 2012/10TH JYAISHTA 1934

                                   WP(C).No. 11973 of 2012 (V)
                                      ---------------------------

PETITIONER(S):
-----------------------

             ABDUL KAREEM, S/O. UMMERKUTTY,
             MOORKATH HOUSE, MARAKKARA AMSOM,
             RANDATHANI P.O., MALAPPURAM DISTRICT.

             BY ADV. SRI.M.SREEKUMAR.

RESPONDENT(S):
---------------------------

          1. STATE OF KERALA,
              REPRESENTED BY SECRETARY TO GOVERNMENT,
              REVENUE DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPURAM-695 001.

          2. REVENUE DIVISIONAL OFFICER,
              PERINTHALMMANNA, PIN-679 322.
              MALAPPURAM DISTRICT.

          3. TAHSILDAR, ERANAD,
              MALAPPURAM DISTRICT, PIN-676 505.


           BY SPL. GOVT. PLEADER (TAXES) DR.SEBASTIAN CHAMPAPPILLY.


           THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
           ON 31-05-2012, THE COURT ON THE SAME DAY DELIVERED THE
           FOLLOWING:




rs.

WP(C).No. 11973 of 2012 (V)


                                  APPENDIX


PETITIONER'S EXHIBITS:-


EXHIBIT P1: TRUE COPY OF ORDER NO. S.R.6/03-04/PI DATED 28-10-2003.

EXHIBIT P2: TRUE COPY OF THE ORDER NO. 15001/SLMC3/04/RD
              DATED 27-02-2004 OF THE FIRST RESPONDENT.

EXHIBIT P3: TRUE COPY OF ORDER NO. S.R.6/03-04/P1 DATED 18-03-2004
              PASSED BY THE 3RD RESPONDENT.

EXHIBIT P4(A): TRUE COPY RECEIPT ISSUED BY THE VILLAGE OFFICER,
               MANJERI DATED 22-12-2003.

EXHIBIT P4(b): TRUE COPY RECEIPT ISSUED BY THE VILLAGE OFFICER,
               MANJERI DATED 21-05-2004.

EXHIBIT P4(c): TRUE COPY OF RECEIPT NO.490297 DATED 18-08-2004.

EXHIBIT P4(d): TRUE COPY OF RECEIPT NO.5881163 DATED 22-11-2004.

EXHIBIT P4(e): TRUE COPY OF RECEIPT NO.6049228 DATED 23-05-2005.

EXHIBIT P4(f): TRUE COPY OF RECEIPT NO.5841056 DATED 22-02-2005

EXHIBIT P4(g): TRUE COPY OF RECEIPT NO.6887243 DATED 22-08-2005.

EXHIBIT P4(h): TRUE COPY OF RECEIPT NO.6208863 DATED 21-11-2005.

EXHIBIT P4(i): TRUE COPY OF RECEIPT NO.6881063 DATED 22-05-2006.

EXHIBIT P4(j): TRUE COPY OF RECEIPT NO.6428897 DATED 22-02-2006.

EXHIBIT P5: TRUE COPY OF THE SALE DEED NO.2402/1/08 OF SUB REGISTRY
              OFFICE, MANJERI.

EXHIBIT P6: TRUE COPY OF THE SALE DEED NO.2403/1/08 OF SUB REGISTRY
              OFFICE, MANJERI.

EXHIBIT P7: TRUE COPY OF THE SALE DEED NO.2404/1/08 OF SUB REGISTRY
              OFFICE, MANJERI.

EXHIBIT P8: TRUE COPY OF THE SALE DEED NO.2405/1/08 OF SUB REGISTRY
              OFFICE, MANJERI.

EXHIBIT P9: TRUE COPY OF THE SALE DEED NO.2406/1/08 OF SUB REGISTRY
              OFFICE, MANJERI.

WP(C).No. 11973 of 2012 (V)




EXHIBIT P10: TRUE COPY OF THE SALE DEED NO.2407/1/08 OF SUB
             REGISTRY OFFICE, MANJERI.

EXHIBIT P11: TRUE COPY OF THE SALE DEED NO.2408/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P12: TRUE COPY OF THE SALE DEED NO.2409/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P13: TRUE COPY OF THE SALE DEED NO.2410/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P14: TRUE COPY OF THE SALE DEED NO.2411/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P15: TRUE COPY OF THE SALE DEED NO.2412/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P16: TRUE COPY OF THE SALE DEED NO.2413/1/08 OF SUB REGISTRY
             OFFICE, MANJERI.

EXHIBIT P17: TRUE COPY OF THE PROPERTY TAX RECEIPT NO. 24960
             DATED 03-05-2011.

EXHIBIT P17(a): TRUE COPY OF THE PROPERTY TAX RECEIPT NO. 24961
                DATED 03-05-2011.

EXHIBIT P18: TRUE COPY OF OCCUPANCY CERTIFICATE DATED 01-03-2012
             ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P19: TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8431/12 L.D.S.
             DATED 16/05/2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P20(a): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8429/12
                L.D.S. DATED 16-05-2012.

EXHIBIT P20(b): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8425/12
                L.D.S. DATED 16-05-2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P20(c): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8426/12
                L.D.S. DATED 16-05-2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P20(d): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8428/12
                L.D.S. DATED 16-05-2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P20(e): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8432/12
                L.D.S. DATED 16-05-2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P20(f): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8433/12
                L.D.S. DATED 16-05-2012, ISSUED BY THE MANJERI MUNICIPALITY.

WP(C).No. 11973 of 2012 (V)




EXHIBIT P20(g): TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.R1-8427/12
               L.D.S. DATED 16/05/2012, ISSUED BY THE MANJERI MUNICIPALITY.

EXHIBIT P21: TRUE COPY OF THE NOTICE NO. P1-373/12 DATED 09-01-2012
             ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P22: TRUE COPY OF THE NOTICE NO. P1-373/12 DATED 09-01-2012
             ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P23: TRUE COPY OF THE RETURN SUBMITTED BY THE PETITIONER
             BEFORE THE 3RD RESPONDENT.

EXHIBIT P24: TRUE COPY OF THE ORDER NO. B4/P1-373/12 DATED 16-03-2012,
             ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P25: TRUE COPY OF THE NOTICE NO. P1-373/12 DATED 16-03-2012
             ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P26: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER
             BEFORE THE 3RD RESPONDENT DATED 05-04-2012.

EXHIBIT P27: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE
             2ND RESPONDENT DATED 10-04-2012.

EXHIBIT P28: TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER
             BEFORE THE 2ND RESPONDENT DATED 10-04-2012.

EXHIBIT P29: TRUE COPY OF THE LETTER NO. B4420/12 DATED 20-04-2012.


RESPONDENT'S EXHIBITS:-          NIL.




                                             //TRUE COPY//




                                             P.S. TO JUDGE

rs.



                   P.R. RAMACHANDRA MENON, J.
             ..............................................................................
                       W.P ) . No.11973 OF 2012
              .........................................................................
                         Dated this the 31st May, 2012

                                   J U D G M E N T

The petitioner is aggrieved of fixation of the building tax under Section 5 of the Kerala Building Tax Act, by the third respondent as per the order dated 16.03.2012, whereby the building complex, which is actually owned by different persons has been reckoned as a 'single unit' and assessed the same accordingly, instead of assessment at the hands of different owners, who constructed the building utilising their own funds and eligible for the benefit of explanation 2 to Section Section 2

(e) of the Act.

2. The sequence of events is as follows: The building is situated on the plot having an extent of 1.16 Acres situated in Sy.No.45 /1 of Manjeri Village and it is a commercial building complex, named as "City Point". After completion of the construction, it was assessed as per the relevant provisions of the Act, vide Ext.P1 assessment order dated 28.10.2003, directing the owner of the property to satisfy a sum of Rs. W.P ) . No.11973 OF 2012 2 4,26,600/- towards building tax. On approaching the Government, the liability was permitted to be satisfied by way of 10 equal monthly installments, as borne by Ext. P2 order dated 27.02.2004, followed by Ext.P3 consequential order. The liability was cleared by the owner accordingly.

3. Later, the petitioner and 11 others purchased different portions of the said shopping complex as per different sale deeds dated 26.05.2008 as borne by Exts. P6 to P16 and they were enjoying the same with absolute ownership, exclusive possession and clear and marketable title, also remitting the tax under different heads. While so, the petitioner and 11 others, who owned the building as above decided to construct two more floors over the existing two-storeyed structure and filed a joint application for building permit. After considering the merits, permission was granted and the construction was completed on 04.02.2012, whereupon, Ext.P18 occupancy certificate was issued . Inspite of filing Ext.P23 return by the petitioner, also pointing out that the building was owned by 12 persons and necessary returns by all the persons and the necessity to have separate assessment, the same was simply given a 'go-bye' and W.P ) . No.11973 OF 2012 3 assessment was finalised at the hands of the petitioner by passing Ext.P24 order, raising Ext.P25 demand for a sum of Rs15,46,200/-. Being aggrieved of the course pursued by the second respondent, though the petitioner has preferred Ext.P27 appeal along with Ext.P28 petition for stay, the petitioner has been given to understand that the appeal will not be entertained for want of satisfaction of <th of the demand made as per Ext.P25 demand notice, which made the petitioner to approach this Court by filing this writ petition.

4. Heard the learned Spl. Government Pleader (Taxes) as well on behalf of the respondent.

5. Going by the nature of the pleadings and by virtue of the alternative remedy available to the petitioner, this Court ordinarily would not interfere in such cases. But the records reveal that a huge liability of Rs.15,46,200/- is mulcted upon the petitioner without any regard to the actual facts and figures, available on the files of the third respondent. This is more so, since the building was already assessed, when it was a two- storeyed structure as per Ext. P1 and the liability was satisfied, but while fixing the liability, it was wrongly included mulcting W.P ) . No.11973 OF 2012 4 huge liability upon the shoulders of the petitioner, that too without assessing the building separately/independently at the hands of separate persons concerned.

6. The learned Spl. Government Pleader submits that all the relevant records were not produced before the third respondent.

7. However after hearing both the sides and after going through the pleadings and proceedings, this Court finds that the matter requires to be looked into with proper application of mind by the third respondent, instead of relegating the petitioner to avail the appellate remedy. In the said circumstance, the impugned order is set aside and the writ petition is disposed of, directing the third respondent to re-consider the matter afresh, giving notice to all the owners of the property in question and after giving an opportunity of hearing to them. It is for the petitioner and such other persons who are stated as owners of the building , to furnish all the requisite materials before the 3rd respondent to establish their separate ownership as to the factum of contribution of funds for effecting construction, so as to have the benefit of Explanation 2 to Section 2(e) of the Act, if W.P ) . No.11973 OF 2012 5 eligible. The proceedings, as above, shall be finalised as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. Petitioner shall produce a copy of this judgment along with a copy of the writ petition before the 3rd respondent for further steps.

P.R. RAMACHANDRA MENON, JUDGE.

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