The petitioner is aggrieved by the demand made as per Exhibit P1 for satisfaction of the amounts allegedly assessed under the Kerala Building and Other Construction Workers' Welfare Cess Act, 1996 [for brevity "Cess Act"]. The petitioner admittedly owns a building within the jurisdiction of the 1st respondent, who is the Assessing Officer under the Cess Act. The petitioner's contention is that the said building had been completed before the coming into force of the Cess Act and that the notices issued and assessments completed are not with respect to the building of the petitioner. 2. The learned counsel for the petitioner specifically points to Exhibit P2 notice issued, which makes a demand of Rs.29,726/-, assessing the total construction value at Rs.29,72,552/-. However, Exhibit P6 order, sought to be served on the petitioner, has assessed the value of construction at Rs.46,86,616/- and demanded an amount of Rs.46,866/- as the cess due. It is also pertinent that though the notice was issued with reference to file No.B2.4270/09, the assessment has been completed with reference to B2.4587/09. The contention of the petitioner, hence, is that the assessment now completed and the notice issued are with respect to other buildings, which are not owned by the petitioner.
3. The learned Government Pleader has filed a detailed counter affidavit, wherein various notices have been produced and the respondent contends that in fact the petitioner did not turn up in response to the various notices issued.
4. It is pertinent that even the documents produced by the Government brings forth a serious anomaly. The assessment, even according to the Government, is completed by Exhibit R1(f), which is Exhibit P6 produced by the petitioner herein. That bears the number as also assesses the value and cess as indicated herein above. The notice relied on by the respondent is produced as Exhibit R1(b) and the same has yet another reference No.B2.4787/09 with date 16.03.2010. The notice referred in Exhibit R1(f) is not R1(b). Evidently there is an anomaly in the assessment completed under the Act.
5. In the circumstance of the petitioner having admitted that he owns a building, which was constructed within the jurisdiction of the 1st respondent, it is only proper that the 1st respondent be directed to re-assess the building, subject, however, to the contention of the petitioner that the building has been constructed prior to the coming into force of the Cess Act. It is specifically noticed that the petitioner relies on Exhibit P5 assessment carried on by the Revenue Department with respect to the Building Tax Act, assessing the petitioner on 30.11.1995. The Cess Act has come into force on 03.11.1995. On the basis of Exhibit P5 alone it cannot be said that the building was completely constructed before the coming into force of the Cess Act. The petitioner definitely has to produce details, to evidence that the completion of the building constructed by the petitioner, having the name “OCK Auditorium” in Nilambur, within the jurisdiction of the 1st respondent, was completed on a date prior to 03.11.1995. If that is established, the building would attract no liability under the Cess Act and if not proved, the assessment could be made under the enactment.
6. The petitioner shall produce a certified copy of this judgment along with any objections as also supporting documents before the Assessing Officer within a period of one month from today and the Assessing Officer shall, after considering the objections as also making a site inspection, if necessary, pass orders under the Cess Act within a period of two months therefrom. Needless to say, the petitioner shall be afforded an opportunity for personal hearing. To facilitate the de novo assessment so completed, the assessment now completed against the petitioner, as is evidenced by Exhibit P6, is set aside.
Writ petition disposed of as above. Parties shall suffer their respective costs.
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Sd/- K.Vinod Chandran Judge.
( true copy )