IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 8109 of 2009(G) -------------------------------------- PETITIONERS: --------------------- 1. I.K.SREEVIDYA, AGED 32 YEARS, W/O.T.K.SUNIL, 'SUKRUTHAM', KANDOTH P.O., NEAR BRAHMAKUMARIS MADAM, KANNUR DISTRICT. 2. T.K.SUNIL, 'SUKRUTHAM', KANDOTH P.O., NEAR BRAHMAKUMARIS MADAM, KANNUR DISTRICT. BY ADV. MR.M.V.AMARESAN. RESPONDENT: ---------------------- ASSESSING AUTHORITY, TAHSILDAR, TALIPARAMBA, KANNUR DISTRICT. BY SR. GOVERNMENT PLEADER MR. P.K. BABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8109/2009-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BUILDING PERMIT NO. BA-477/04-05 DTD. 18/08/2004. EXT.P.2: COPY OF THE BUILDING PLAN DULY APPROVED BY PAYYANNUR MUNICIPALITY. EXT.P.3: COPY OF THE JUDGMENT PASSED IN W.P.(C).24487/05 DTD. 07/11/2008. EXT.P.4: COPY OF THE NOTICE IN FORM UNDER RULE 9 (1) OF K.B.R. ACT REF. NO. C4- 1958/09. EXT.P.5: COPY OF THE DEMAND NOTICE ISSUED U/S. 10 IN FORM VI BEARING REF. NO. C4-1958/09 DTD. 24/02/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 8109 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 5th day of August, 2009 JUDGMENT The issue involved in the present case is whether the unenclosed terrace portion of the building belonging to the petitioner is liable to be reckoned for computing the 'plinth area' as defined under Section 2 (k) of the Kerala Building Tax Act. 2. The case of the petitioner is that, the building is actually having only a total area of 235 M2 and that the terrace portion is having an area 47.19 M2. By virtue of the law declared by this Court, vide Ext.P3, the latter portion is not liable to be reckoned for the fixation of the 'plinth area' and no luxury tax could have been imposed under Section 5 A of the Act. The grievance of the petitioner is that, the respondent/assessing authority reckoned the entire area for the purpose of assessment, which hence is sought to be challenged. 3. The respondent has filed counter affidavit conceding the fact that, the total plinth area reckoned for the purpose of assessment is only for 288.08 M2; out of which 49.76 M2, constitutes terrace portion. Even going by the admitted facts and in view of the declaration of law by this Court, once the said portion is excluded from the total extent, the building is having only a lesser extent than the requisite area for assessment of luxury tax under Section 5 A. WP (C) No. 8109 of 2009 : 2 : 4. In the above circumstances, the impugned order is set aside and the respondent is directed to reassess the building tax payable in respect of the building in question taking note of the dictum in Ext.P3 judgment. The above exercise shall be finalized after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within 3 months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd