IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 WP(C).No. 26730 of 2006(F) -------------------------- PETITIONER: --------------- P.C.SAMUEL, PADINJARAMANNIL, POOVANMALA, RANNY, PATHANAMTHITTA. BY ADV. SRI.JACOB P.ALEX RESPONDENTS: --------------- 1. DISTRICT COLLECTOR, PATHANAMTHITTA. 2. TAHSILDAR, RANNY. BY GOVERNMENT PLEADER ADV. MR. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26730 of 2006(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF BUILDING TAX PAYMENT RECEIPT DATED 23.12.1998. EXT.P2 : CERTIFICATE ISSUED BY SECRETARY ANGADI PANCHAYAT DATED 27.122.2005 EXT.P3 : DRAWING PREPARED BY THE ENGINEER. EXT.P4 : LUXURY TAX PAYMENT RECEIPT DATED 09.01.2004. EXT.P5 : REPRPESENTATION TO 1ST RESPONDENT DATED 08.01.2006. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 26730 OF 2006 ......................................................................... Dated this the 5th January , 2010 J U D G M E N T The petitioner is aggrieved of the assessment of 'Luxury Tax' under Section 5A of the Kerala Building Tax Act, whereby, the petitioner has been assessed to pay a sum of Rs. 2000/- every year in respect of the building in question, which, according to him, was constructed before 01.04.1999, the date from which the liability under Section 5A was brought into force. It is also the contention of the petitioner that the building in question does not have the requisite area of 278.7Sq.M, so as to attract the 'Luxury Tax', which is sought to be substantiated by producing Ext.P3 plan prepared by an engineer engaged by the petitioner. 2. The learned Government Pleader, with specific reference to the contents of the counter affidavit filed by the second respondent, submits that the petitioner did never have a case W.P.(C) No. 26730 OF 2006 2 disputing his liability to pay 'Luxury Tax' under Section 5A at any point of time. It is also submitted that the petitioner had never chosen to challenge the 'plinth area' or fixation of liability under the Kerala Building Tax Act and that there was no whisper that the building was constructed prior to 01.04.1999. 3. The learned Counsel for the petitioner, placing reliance on Exts.P1 and P2 issued from the concerned Grama Panchayat, submits that the building was constructed much before the appointed day i.e., prior to 01.04.1999 and hence that no liability could be mulcted on the petitioner under Section 5A towards 'Luxury Tax' . But the factual position as narrated by the respondents in the counter affidavit shows that, after completion of construction of the residential building, the Village Officer had submitted a report bearing No. 529/99 dated 29.11.1999 along with the return duly signed by the owner of the building and a rough sketch before the Tahsildar, Ranni, showing the plinth area of the building as 282.7 Sq.M. 4. Pursuant to the further steps taken for assessment under the Kerala Building Tax Act, the petitioner was heard. W.P.(C) No. 26730 OF 2006 3 Notice of hearing was issued on 16.10.2000 and the petitioner was heard on 27.10.2000, who, after hearing, accepted the measurement reported by the Village Officer and remitted the 'Building Tax' of Rs.9000/-. No objection whatsoever was raised by the petitioner, either as to the measurement or as to the date of completion of the building, pursuant to the assessment order and demand notice dated 27.10.2000 issued under Sections 9 and 10 of the Kerala Building Tax Act. The due amount was satisfied on the very same date. 5. Subsequently, the office of the Accountant General observed, during the course of the audit, that despite the building having constructed after the appointed day and was having the plinth area above the prescribed extent, no assessment of Luxury Tax was ever made, which hence was sought to be remedied, leading to the proceedings taken by the concerned respondent . It was accordingly, a demand notice was issued to the petitioner directing to remit the Luxury Tax of Rs.2000/- per annum from the financial year 1999-2000 onwards, which was sought to be challenged by the petitioner W.P.(C) No. 26730 OF 2006 4 by filing appeal before the Revenue Divisional Officer on 26.06.2002. The appeal was dismissed as per the order dated 18.03.2003 as not maintainable. Pursuant to the demand raised, it is stated that the petitioner has remitted Luxury Tax for four years, i.e., Rs.8000/- as per Chalan No. 1061 dated 31.3.2003 for the period from 1999-2000 to 2002-03, Rs. 2000/- each for the period of 2003-04 and 2004-05 vide Chalan No. 412 dated 16.1.04 and 984 dated 28.02.2005 respectively in the Sub Treasury, Ranni. 6. The learned Government Pleader also brought it to the notice of this Court, with reference to paragraph No.6 of the counter affidavit, that the petitioner has only stated in the return filed by him that the construction of the building was completed in 1999, while he has consciously omitted to note the month and date of construction. It is also stated that, at the time of hearing, no argument was put forth by the petitioner as to the date of completion of the building or about the measurement reported by the Village Officer; nor did he submit any documents to prove the same. It was accordingly that the assessing W.P.(C) No. 26730 OF 2006 5 authority completed the proceedings and 'Luxury Tax' was levied, which hence is stated as not assailable under any circumstances. 7. The specific averments raised by the second respondent in the counter affidavit have not been chosen to be rebutted by the petitioner by filing any reply affidavit. In the said circumstances, this Court does not require any second thought to doubt the voluntary action pursued by the petitioner in choosing to suffer the 'Luxury Tax' imposed upon him, pursuant to the assessment and demand made in respect of the building in question. However, unlike the Building Tax, imposition of the 'Luxury Tax' under Section 5A is not a 'one time affair' and it is liable to be satisfied every year. For the very same reason, the petitioner is entitled to challenge remittance of further amount in respect of any subsequent year, as and when the cause of action arises, more so, in view of the law declared by this Court in Mohamad Sadik vs. Tahsildar (2006 (3) KLT 271). W.P.(C) No. 26730 OF 2006 6 8. In the above facts and circumstances, the relief prayed for by the petitioner for issuing necessary direction to refund the amount already paid by him towards 'Luxury Tax' under Section 5A of the Kerala Building Tax Act is not liable to be entertained and interference is declined. However, this will be without prejudice to the right of the petitioner to file appropriate proceedings before the assessing authority with regard to the liability to pay the Luxury Tax as and when demands are made in respect of the subsequent years, raising all necessary contentions and by producing all necessary supporting documents to substantiate the said pleading. With the above observations, the matter is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk