IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 12841 of 2004(D) ----------------------------------------- PETITIONER(S): ------------------------ LEKHA HARIDAS, MADHAVAM, EVOOR NORTH, CHEPPAD VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.K.HARILAL RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO REVENUE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, COMMISSIOENRATE OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. 4. THE REVENUE DIVISIONAL OFFICER, CHENGANNOOR. 5. TAHSILDAR, KARTHIKAPPALLY. BY GOVERNMENT PLEADER MR.MOHAMED RAFIQ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C NO.12841 OF 2004 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the demand notice issued by Tahsildar, Karthikappally dated 3.1.2003. Ext.P2: True copy of the order dated 24.7.2003 passed by the 3rd respondent. Ext.P3: True copy of the order dated 8.3.2004 passed by the 3rd respondent. Ext.P4: True copy of the notice demanding laxury tax of building tax. /True Copy/ P.A. TO JUDGE SPC C.K.ABDUL REHIM, J. --------------------------- W.P.(C)No.12841 OF 2004 ------------------------------- DATED THIS THE 1ST DAY OF JUNE, 2009 J U D G M E N T ~~~~~~~~~~~ 1. The petitioner is aggrieved by imposition of Luxury Tax under S.5A of the Kerala Building Act, 1975. According to the petitioner the residential building constructed by him is having plinth area of only 186 Sq.ms. It is contented that the Deputy Thahasildar had measured the area of the building for the purpose of assessment of Building Tax, and he reported the plinth area of the building as 280 Sq.ms. This, according to the petitioner, is not correct and it was only due to extraneous reasons that such a report was filed. However, Building tax was assessed on the petitioner for an amount of Rs.4,800/-, which was remitted by him under protest. Thereafter Ext.P1 demand notice was issued requesting the petitioner to remit Luxury tax for the years from 2000 to 2003, amounting to Rs.6,000/-. Being aggrieved by the said demand, the petitioner filed appeal dated W.P.(C)No.12841 of 2004 2 3.2.2003 before the 4th respondent. But the said appeal was rejected through Ext.P2 order assigning reason that the it was not filed within the time limit prescribed. The petitioner thereafter preferred revision before the 3rd respondent, which was also dismissed as per Ext.P3 order dated 8.3.2004. After dismissal of the revision petition, Ext.P4 demand was issued against him demanding a total amount Rs.10,000/- towards Luxury Tax due the years from 2000-01 to 2004-05. The challenge is against the demand of Luxury Tax made through Ext.P1 which is confirmed in appeal and revision, and also against the demand raised through Ext.P4. 2. The main contention of the petitioner is that the finding in Ext.P2 that the order of assessment was served on the petitioner on 23.2.2001, is absolutely incorrect. The Ext.P1 notice is dated 3.1.2003 and the petitioner had filed the appeal before the 4th respondent on 3.2.2003. On a perusal of Ext.P2 order it is noticed that the rejection of appeal is made on the presumption that appeal is filed against the assessment of Building Tax, originally made on 23.2.01. It is evident from Ext.P2 that the W.P.(C)No.12841 of 2004 3 appeal is dated 3.2.2003. Therefore it is probable that the appeal is filed only against the demand of Luxury Tax made through Ext.P1. This is especially because of the fact that the petitioner had admitted that the amount of Rs.4,800/- was already remitted. In Ext.P3 order, the revisional authority also found that the appeal was filed belated. Both the authorities have not probably adverted to the fact that the appeal and revision relates to assessment of Luxury Tax. 3. Under S.5A of the Act Luxury Tax is recurring liability and the assessment is made on year to year basis. It is evident that the main dispute of the petitioner is regarding a liability for payment of Luxury Tax, based on the contention that the plinth area of the building is less than the assessible limits. From the facts stated above it is evident that the appellate authority had rejected the appeal on a wrong premise. Under such circumstances it is only just and proper to have a re- consideration of the matter by the appellate authority. 4. In the result the orders Ext.P2 and P3 are hereby quashed. The matter is remanded to the 4th respondent for fresh W.P.(C)No.12841 of 2004 4 consideration of the appeal on its merits. 4th respondent will conduct proper enquiry into the facts of the case and if necessary make arrangements for measuring plinth area of the building with notice to the petitioner. The 4th respondent after considering all materials on records and after conducting proper enquiry will dispose of the matter with opportunity of hearing afforded to the petitioner as early as possible at any rate within a period of 2 months from the date of receipt of copy of this. 5. The petitioner is directed to produce a copy of this judgment before the 2nd respondent for facilitating fresh disposal of the appeal petition. Recovery steps if any initiated for realisation of amount of Luxury Tax is directed to be kept in abeyance for a period of four 4 months from today. The writ petition is disposed accordingly. C.K.ABDUL REHIM, JUDGE. spc