The assessment finalized by the 1st respondent under the relevant provisions of the Kerala Building Tax Act is under challenge in this writ petition.
2. The case of the petitioner is that, the premise in question has been taken on lease from the owner of the land and after securing necessary permit from the local authority, a building has been constructed by the petitioner, where the petitioner is running a show-room and factory dealing with the sales and repairs of 'Volkswagen' vehicles. After satisfying the 1st quarterly instalment pursuant to Ext.P1 order and demand, the petitioner moved the appellate authority, i.e, the 2nd respondent under Section 11 of the Kerala Building Tax Act, 1975. The main contention of the petitioner before the appellate authority was that, he is entitled for exemption under Section 3(1)(b) of the Kerala Building Tax Act, as the building is principally being used for running factory/workshop. In spite of the clear mandate under the Act, the appellate authority passed Ext.P5 order dated 22.02.2014 remanding the matter to be considered by the 1st respondent for fresh assessment, also taking into account the entire 'plinth area' of the workshop for determination of the building tax, observing that the building was not being principally used for workshop. This led to Ext.P6 order dated 23.09.2014 passed by the first respondent, fixing a higher extent of liability, which made the petitioner to approach this Court challenging both the above proceedings.
3. Heard the learned Government Pleader as well.
4. The learned counsel for the petitioner submits that the petitioner has produced a copy of the approved plan of showroom-cum-workshop as Ext.P7 and such other documents to the effect that, construction was effected by the petitioner on the basis of a memorandum of understanding made with the landlord. A copy of lease deed is produced as Ext.P8 along with I.A. No. 16764 of 2014.
5. The learned Government Pleader submits that, the petitioner, who is never the owner, is not entitled to file a petition for exemption and it is for the owner of the building, to have it filed. It is further pointed out that Ext.P5 order was passed as early as on 22.2.2014 and that the petitioner did not challenge the same till now. It is stated, whether a tenant/lessee could raise such a contention is the subject matter of consideration before this Court in W.P.(C). No. 5243 of 2014.
6. The learned counsel for the petitioner submits that, Ext.P5 order was never served to the petitioner at any point of time or any opportunity of hearing was given in this regard. The petitioner came to know about the said proceeding only when he was served with Ext.P6 order/demand.
7. After hearing both the sides, this Court does not find it necessary to hear the issue with regard to the right of the petitioner to raise a challenge claiming exemption under Section 3(1)(b), he admittedly not being the owner of the building, but a lessee, for the reason that it is to be considered by the Government. Whenever a claim is made for exemption under Section 3(1)(b), it is always open for the Government to consider the maintainability of the petition as well. The question to be considered is whether the petitioner had raised any such claim. On going through the contents of Ext.P5 order, the opening paragraph itself reveals that the main contention of the appellant/petitioner was that, as per the provision under Section 3(1)(b) of the KBT Act, the building was being principally used as workshop and as such, liable to be exempted from assessment. It is settled law that, once such a claim is raised, it is obligatory for the concerned authority to have it referred to Government for decision, in terms of Section 3(2) of the KBT Act. The 2nd respondent/RDO does not have a case that the petitioner is not entitled to raise any such claim, he being a tenant and the decision came to be taken by the said authority, based on merit, which could not have been done, as it was for the Government to have it considered and decided in terms of the relevant provisions of law.
8. Accordingly, Exts.P5 and P6 are set aside and respondents 1 and 2 are directed to forward the proceedings preferred by the petitioner, as referred to in Ext.P5, to be considered and decided by the Additional 3rd respondent/State, which shall be done within 'two weeks' from the date of receipt of a copy of this judgment. On receipt of the proceedings as above, the additional 3rd respondent shall consider the issue, including the eligibility of the petitioner/lessee to claim exemption under Section 3(1)(b), he being tenant of the premises and not an owner of the building. Appropriate orders shall be passed in accordance with law, after giving an opportunity of hearing to the petitioner at the earliest, at any rate, within 'three months' from the date of receipt of the proceeding as above. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the concerned respondent for further steps.
P.R. RAMACHANDRA MENON, JUDGE.
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