IMPORTANT POINTS
The claim for refund of Building tax and luxury tax collected, on the ground of exemption of the building under the Building Tax Act, it is admitted that the petitioner was assessed to building tax under Section 5 of the Kerala Building Tax Act, 1975 as well as for luxury tax under Section 5A of the said Act.

JUDGMENT :

T.R. RAVI, J.

1. This appeal is filed at the instance of the petitioner in W.P. (C) No. 10430 of 2020. The appellant is a Society and they approached this Court praying for a declaration that the building owned by them which houses the DM convent, Chaikkottukonam, is entitled for exemption from payment of building tax and luxury tax under the Kerala Building Tax Act, 1975 and also for exemption from payment of property tax under Section 235(a) of the Municipality Act, 1994. There are also consequential prayers for quashing the orders of assessment and for refund of amounts collected as building and luxury taxes from the appellant. The learned Single Judge by judgment dated 27.05.2020 dismissed the writ petition finding that the appellant is not entitled to exemption under the Building Tax Act and Municipality Act.

2. Heard Sri George Varghese Perumpallikuttiyil on behalf of the appellant, Sri Mohammed Rafiq, Senior Government Pleader, on behalf of respondents 1 and 3 to 5 and Sri R.T. Pradeep learned Standing Counsel for the 2nd respondent Municipality.

3. The contention of the appellant is that the building which is a novitiate home is entitled to exemption both under the Building Tax Act as well as under the Kerala Municipality Act, having regard to the fact that it is used for the residence as well as study by the nuns belonging to the religious order and that it is also used for their religious practices and functions. According to the counsel, residence is a purpose incidental to the main purpose and hence an exemption cannot be rejected on the ground that the building is used for the residence of the nuns. Relying on the judgment of a Division Bench of this Court in Mother Superior, Adoration Convent vs. Government of Kerala and Another, 2008 (1) KLT 446, the counsel for the appellant contends that religious purposes would include residence of the nuns also and hence the appellant is entitled to exemption from building tax and luxury tax. Since the amounts have already been paid, the Counsel submits that the appellant is entitled to refund of the tax wrongly collected. The Counsel for the respondents on the other hand contend that there cannot be any comparison between the exempting provisions in the Kerala Building Tax Act and the Municipality Act and that even on a plain reading the scope of the provisions of the two enactments are different. The Senior Government Pleader relied on the decision of a Full Bench of this Court in Aswirathul Musthaqeem Sangham vs. State of Kerala, 2019 (1) KLT 238, to submit that once an assessment order is issued, the assessing authority becomes “functus officio” and it is not possible for the assessee to raise a valid claim before the said authority. In the above said decision, the Full bench held that even after the passing of the assessment order, it is open for the owner of the building to raise a claim for exemption, in an appeal filed against the assessment order.

4. For the purpose of proper appreciation of the contentions of the parties, we are extracting the relevant statutory provisions:

“Section 3(1)(b) of the Building Tax Act:

3. Exemptions:-

(1) Nothing in this Act shall apply to xxx xxx xxx xxx xxx

(b) buildings used principally for religious, charitable or educational purposes or as factories or workshops or cattle/pig/poultry farms or ply houses.”

Section 235(a) of the Kerala Municipality Act, 1994.

“235. Exemption from property tax, service cess, etc. - The following buildings and lands shall be exempted from the property tax as may be levied under section 233 and service cess as may be levied under sub-section (4) of section 230, namely:

(a) buildings set apart for public worship and actually so used or used for incidental purposes, religious study centres.”

5. It can be seen from Section 3(1)(b) above, that to qualify for exemption under the Building Tax Act, what is required is the user of the building principally for religious, charitable or educational purposes. At the