IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 33616 of 2010(B) --------------------------------------- PETITIONER: ------------------- AJIMON,S/O.JOSEPH, KIRIYANTHAN HOUSE,,KOCHANGADI ROAD, NJARAKKAL, ERANKULAM DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON. RESPONDENTS: ------------------------ 1. THE TAHSILDAR, TALUK OFFICE, KOCHI-682 011. 2. THE VILLAGE OFFICER, NJARAKKAL-682 505. R1 & R2 BY GOVT. PLEADER SRI. BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.33616 of 2010 ------------------------------------------- Dated this the 8th day of November, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against assessment completed under the Kerala Building Tax Act, 1975. Ext.P5 order of assessment was issued against the petitioner, under Section 5A, imposing liability for payment of luxury tax at the rate of Rs.2000/- per year. Going by Ext.P5 it is evident that the tax liability was fixed on the premise that the building in question is having plinth area of 284.45 Sq.M. Contention of the petitioner is that the plinth area is calculated including the car porch which is liable to be exempted. According to the petitioner, if the area of the car porch is exempted, the total plinth area will be 267.52 Sq.M. only. Therefore the assessment under Section 5A is not sustainable since the actual area is less than the statutory limit provided under Section 5A, is the contention. W.P.(C).33616/10-B -2- 2. It is noticed that under Section 11 of the Kerala Building Tax Act, an effective remedy by way of appeal is provided against Ext.P5. Learned counsel for the petitioner submitted that the question regarding exemption of the area of the car porch from the total plinth area, is an issue now stands settled in favour of the petitioner. However, the factual aspects like, how much is the area of the car porch and what is the total plinth area of the building after deducting the car porch, etc. are matters which require evidence and proof. The appellate authority, being a fact finding authority, is empowered to take a decision on the issue based on evidence which can be adduced before that authority. At any rate, I am of the view that the issue could not be decided in this writ petition. Hence I am of the view that the petitioner can be relegated to the appellate authority. 3. Under the above circumstance the writ petition is dismissed without prejudice to rights of the petitioner to challenge Ext.P5 order of assessment before the appellate authority as provided under Section 11 of the Kerala W.P.(C).33616/10-B -3- Building Tax Act. Needless to observe that if there occurs delay in filing the appeal the factum of filing this writ petition shall be considered by the appellate authority for the purpose of condoning the delay. C.K.ABDUL REHIM, JUDGE. okb