The Kerala Building Tax Act imposes a one-time tax on change of user, and specific exemption claims and filing of returns are essential. Penal interest should be invoked only in cases of deliberate misuse after claiming exemption.

The petitioner is aggrieved with the order of assessment made under Ext.P8 and a notice of demand made under Ext.P8(a), invoking the provisions of the Kerala Building Tax Act, 1975 ('Act' for short).

2. The petitioner obtained title to the property and the building by way of a settlement deed, at Ext.P5 dated 03.10.2007. The building is said to have been originally constructed for a factory and though the same was constructed in the year 1992, no return was filed since there was a claim of exemption under Section 3 of the Act. There was also no assessment proceedings taken against the building. Subsequently, the petitioner obtained the land and building by Ext.P5. The petitioner converted it as a godown and in such circumstance, the petitioner was issued with an order of assessment under Section 3B of the Act.

3. The petitioner's contention is that the building itself was used as a factory from 1992 to 2007 and the incidence of levy under Section 5 of the Act, being on the completion of the building and the purpose for which it was built being to run a factory, there could be no subsequent levy on the change of user. Further, it is contended that the claim of exemption, as per sub section (2) of Section 3 of the Act, has to be considered by the Government and when there is a denial of such exemption, the same also has to be considered by the Government.

4. The contention that the incidence of levy is at the time of completion is correct, but, however, Section 3B of the Act takes care of situations where there is change of user of the building. Section 3B speaks of misuse of exemption, which could only be a change of user, which user is not eligible for an exemption under the Act. The provision also speaks of penal interest at the rate of 12% per annum from the date of completion of the building, which, however, could be levied only if there is a contumacious conduct and a deliberate intent to misuse, after claiming exemption.

5. The contention with respect to the exemption possible of being cancelled only by the Government, cannot be countenanced in the facts of the case. In the present case, there was no exemption as such granted to the petitioner's father. The petitioner's father, who had constructed the building, did not, admittedly, file any return. There was never any claim raised nor was exemption granted and hence there is no question of a cancellation. The petitioner relies on the decision reported in Victory Paper and Boards (India) Ltd. v. R.D.O. - 2000 (2) KLT SN 83 to urge the exclusive jurisdiction of the Government to consider exemptions. That was a case in which the assessing officer declined reference to the Government for consideration of the claim of exemption. The Division Bench of this Court held that the minute a claim of exemption under Section 3 is raised the matter has to be referred to the Government. Here there is no subsisting claim for exemption and admittedly now the petitioner is not using the building as a factory.

6. The contention of the petitioner is only that the building was used as a factory and then converted to a go-down after the same was settled in his name in the year 2007. The petitioner has produced a number of documents to substantiate his contention that the building at the time of construction was intended to be used as a factory. However, even then; there ought to have been a return filed under the Act and if entitled to exemption, a specific claim made on that account ought to have been granted by the Government. Now, admittedly, the building is used as a go-down, which definitely is not entitled to any exception under the Act. At least on such conversion of user, it was incumbent on the petitioner to have filed a return.

7. None of this having been done, it was perfectly within the jurisdiction of the assessing authority to proceed to assess the building regularly or under Section 3B of the Act. According to this Court, the building tax being a one-time tax on change of use