The petitioners are aggrieved with Ext.P9 order passed purportedly, in pursuance to Ext.P8 judgment. The dispute is with respect to an Apartment building constructed by the petitioners herein and the assessment under the Kerala Building Tax Act, 1975 (for short 'the Act'). While the State proceeded to assess the building as one unit, the petitioners claimed separate assessment for each of the Apartments as provided in Explanation 2 to sub-section (e) of Section 2 of the Act. Such claim was declined and a demand notice Ext.P7, was issued proposing assessment of the building as one building.
2. Petitioners were before this Court and by judgment dated 16.12.2013, this Court directed consideration of the petitioners' claim and also required that a detailed order, after adverting to the contentions of the petitioners, be passed.
3. It is in purported compliance of that judgment, Ext.P9 has now been passed. The authority seems to have understood the detailed order as directed in Ext.P8; to be one with respect to the background facts. The authority has laboured upon the background facts for more than four paragraphs and has confined the consideration to the last paragraph, which is devoid of any reasons. The consideration made, also is found to be absolutely beyond the scheme of the Act, and without any application of mind. While the details produced by the petitioners were found to be supporting their contention, the assessment as separate units was declined only on the ground that the agreements were not registered. It is to be noticed that at that point of time, there was no requirement for registration of an agreement to sell landed property or for constructing flats thereon. Amendment with respect to that, came with the Kerala Registration Amendment Act, 2012. Obviously, the construction of the building was concluded prior to that.
4. The learned Government Pleader however, after going through the files, points out that the returns filed by the petitioners' indicate the date of completion as 2005. But the details with respect to the payment by individual apartment owners are subsequent to that date. All the agreements are also said to be subsequent to the date on which the construction was concluded. However, no such consideration is evident from Ext.P9 order. Ext.P9 definitely has to be set aside and it is also to be noticed that the authority has acted in a cursory manner and superficially without looking into various dates to understand as to whether the construction has been carried on and completed as has been indicated in Bavasons Construction
(P) Ltd. V. State of Kerala (2007 (3) KLT 101).
5. It is unfortunate that the Officers of the revenue indulge in such superficial exercise of quasi judicial authority; thus resulting in harassment of the assessees and delay in recovery proceedings. A quasi-judicial authority conferred with the duty to pass assessment orders, cannot act like a mere recovery Officer. Tax has to be levied in accordance with the statute. Though individual/collective hardship is no ground against taxation; no tax can be levied unless by authority of law. A taxation officer also cannot go outside the clear demarcation of the statute and bring to tax, what is not clearly covered, or tax, in a manner not intended by the legislature.
6. What necessarily has to be gone into herein, is as to whether the agreements were entered into and the payments made by the prospective purchasers; prior to the conclusion of construction. This alone would indicate the very intention of the parties to construct separate flats; which construction also was carried on by the prospective buyers expending their money; however entrusting such construction to be carried on by the builder.
7. What is intended to be excluded; going by the dictum of the aforesaid judgment; is a construction carried on by the developer, exclusively, and then entering into deceptive agreements styling such construction having been carried on with the co-operation and out of the funds of the prospective purchasers; when the latter comes into the picture after the completion of the project.
8. Ext.P9 is set aside for reason of total non-application of mind and absolute lack of consideration of the relevant materials. Evidently the order has been passed without any respect to the directions in Ext.P8. Petitioners shall appear before the 3rd respondent on 02.07.2014. The 3rd respondent shall proceed with the consideration of the issue on the said date or any adjourned date within a month from that date; convenient to the 3rd respondent as also to the petitioners. The entire exercise shall be concluded and orders passed, within a period of three months from today, detailing the material produced with relevant dates and following the dictum in Bavasons Construction (P) Ltd. (supra). The petitioners shall, along with a certified copy of this judgment, produce a copy of the afore cited judgment before the authority.
Writ petition disposed of. Parties are directed to suffer their costs.
Sd/- K.VINOD CHANDRAN,
Judge
Mrcs //True Copy//