Court mandates referral to Government for exemption claims not addressed during assessment.

JUDGMENT

Petitioner has approached this Court challenging Exts.P8, P10 and P12 proceedings issued under the provisions of the Kerala Building Tax Act , 1975 (in short, “Act 1975”).

2. It is averred that the petitioner is the sole proprietor of a concern named ‘Veer Mahindra’, conducting a workshop, service centre and Mahindra vehicle dealership. Petitioner constructed the building as a ‘factory’ and has obtained all necessary licences and permissions. Ext.P1 permit reveals that permission has been granted for constructing an industrial building. The factory plan approval order/permit issued by the Director of Factories & Boilers, which is produced as Ext.P2, also supports the said stand of the petitioner. On the basis of the same, petitioner would contend that the building is an exempted building as provided under Section 3 (1)(b) of the Act 1975, which exempts any buildings used principally for religious, charitable or educational purposes or as factories or workshops, from the provisions of the Act 1975. Overlooking the same the building was assessed as per Ext.P8 order of assessment. For the additional construction undertaken by the petitioner, another assessment order was issued as Ext.P10. Challenging the same, an appeal was preferred, but the same was rejected as per Ext.P12. Pursuant to the direction issued by this Court on 20.01.2022, the petitioner has produced copy of the appeal memorandum as Ext.P13, wherein a specific ground has been raised that since the building is coming under industrial building category, there is no applicability of the Act 1975 in view of (1)(d) of the said Act. Petitioner would contend that going by (2) of the Act 1975, if any question arises as to whether a building falls under Sub-section (1) of , same shall be referred to the Government and the Government shall decide the question after giving the interested parties an opportunity to present their case. On the basis of the same, it is the contention of the petitioner that since such a specific contention has been raised in Ext.P13 appeal, the appellate authority ought to have followed the procedure as mandated in (2) of the Act 1975 and referred the matter to the Government, but without doing so, the appeal has been rejected as per Ext.P12.

A Full Bench of this Court in Aswirathur Musthaqeem Sangham, Pengattu Kundu v. State of Kerala and another , 2019(1) KHC 312 (FB), has held that a claim for exemption cannot be made to the assessing authority after finalisation of the assessment and the remedy under such situation can only be by way of filing an appeal against assessment order and by raising a question of claim for exemption before the appellate authority, then the appellate authority before deciding the appeal has to refer the question of exemption to Government, which has not been done in the present case. In the light of the above, I am of the view that Ext.P12 is liable to be interfered with. Accordingly, Ext.P12 is set aside, with a consequential direction to the 3^rd respondent to reconsider Ext.P13 appeal and refer the matter to the Government as mandated in Section 3 (2) of the Kerala Building Tax Act , 1975 and subject to the decision to be taken by the Government decide the appeal in accordance with law. The said exercise shall be completed within a period of five months from the date of receipt of a copy of the judgment.

With the abovesaid observations and direction, the writ petition is disposed of.

Sd/-