The petitioner is an Ayurveda Hospital. It had purchased a property with a building thereon in 1992. It is the case of the petitioner that, on the said building, an additional floor was constructed in 1993, for the purposes of running a Nursing School. The petitioner was, however, issued with a notice proposing levy of building tax on the entire building, including the portion that was constructed prior to the coming into force of the Building Tax Act. Ext.P13 is the assessment order that was passed by reckoning the plinth area of the building as 2514.07 sq.metres. Ext.P16 is the revenue recovery notice served on the petitioner. In the writ petition, Exts.P13 and Ext.P16 are impugned, inter alia, on the ground that the respondents had authority to levy building tax only on the additional construction effected in 1993, and not the earlier portion which had come into existence prior to the coming into force of the Building Tax Act. It is also the case of the petitioner that, insofar as the additional construction was made to house a Nursing School, the said construction would also qualify for exemption in terms of Section 3 of the Kerala Building Tax Act.
2. A counter affidavit has been filed on behalf of the respondents wherein it is pointed out that the documents produced by the petitioner, to suggest that the property that was acquired by them included a building therein, show the survey number of the property to be No. 890/02 of Ayyanthole village whereas the present construction is effected in Survey No.886/4. It is the case of the respondents, therefore, that the construction which is stated to be an old building, must necessarily be a building other than the one mentioned in the sale deeds produced by the petitioner in the writ petition. It is also pointed out that the petitioner had not made any claim for exemption prior to the assessment being done on them.
3. I have heard Smt.Lisha.M., the learned counsel for the petitioner and Smt.K.T.Lilly, the learned Government Pleader appearing on behalf of respondents.
4. On a consideration of the facts and circumstances of the case and submissions made across the Bar, I am of the view that, insofar as there is a dispute with regard to the existence of an earlier building, in the area where the additional construction was effected by the petitioner in the year 1993, it was incumbent upon the assessing authority to consider the said objection of the petitioner before passing orders of assessment in respect of the additional construction effected by the petitioner. It is also necessary to note that the petitioner had a definite case that the additional construction effected was for the purposes of conducting a Nursing School. If that be so, then in terms of the decision of the Full Bench of this Court in Unity Hospital (P) Ltd. v. State of Kerala [2011 (1) KLT 236], the assessing authority would have to ascertain whether the additional construction would qualify for exemption in terms of the said judgment of this Court. Insofar as Ext.P13 assessment order does not reflect a consideration of these aspects, I quash Ext.P13 assessment order, as also Ext.P16 revenue recovery notice, and direct the 3rd respondent Tahsildar to pass a fresh assessment order, assessing the additional construction effected by the petitioner in the year 1993 to building tax, after verifying whether the construction is in fact an additional construction to an erstwhile building or a new construction altogether. The 3rd respondent shall also keep in mind the aforementioned decision of the Full Bench of this Court so as to determine whether the petitioner is entitled to the exemption claimed in respect of the additional construction. The 3rd respondent shall pass fresh orders in the matter within a period of three months from the date of receipt of a copy of this judgment, after hearing the petitioner. The order to be passed by the 3rd respondent shall be a reasoned one and shall be advert to the documents produced by the petitioner in support of its contentions.
A.K.JAYASANKARAN NAMBIAR JUDGE mns