IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 35520 of 2010(L) -------------------------- PETITIONER(S): --------------- P.I.NAZAR, S/O.PARAYIL IBRAHIMKUTTY, PARAYIL HOUSE, SANTHIPURAM P.O. KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, THRISSUR, PINCODE - 680 001. 2. THE REVENUE DIVISIONAL OFFICER, THRISSUR, PINCODE - 680 001. 3. THE TAHSILDAR, KODUNGALLUR, PINCODE - 680 664. 4. STATE OF KERALA, REP. BY SECRETARY TO GOVT., DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM PINCODE - 695 001. BY GOVT. PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.35520 of 2010-L ---------------------------------------- Dated this the 6th day of December, 2010. J U D G M E N T The issue pertains to assessment under Section 5A of the Kerala Building Tax Act 1975 (KBT Act). The petitioner constructed a residential building in the year 2002. Building tax under Section 5 was assessed reckoning plinth area of the building as 315.5 Sq.M. On that basis the petitioner was required to pay luxury tax under Section 5A of the Act. 2. According to the petitioner, the plinth area reckoned for the purpose of assessment is not correct and the area occupied by the car porch is liable to be exempted under the proviso to Section 5(5) of the Act. Ext.P2 is the order of assessment finalised against the petitioner imposing tax under Section 5. The petitioner had challenged the assessment in appeal and further in revision, which were unsuccessful. Ultimately the petitioner had approached this Court in W.P(C) No.3192/2010. This Court W.P(C) No.35520 of 2010-L 2 found that eventhough the assessment of building tax became final, the assessee is entitled to challenge the assessment under Section 5A, since the assessment of luxury tax under Section 5A is made on an year to year basis. Despite payment of luxury tax with respect to any previous year, the petitioner is entitled to challenge any subsequent assessment, as held by this Court in Mohamad Sadik V Tahsildar (2006(3) KLT 271). On the above premise while disposing W.P(C) No.3129 of 2010 through Ext.P3 judgment, the matter was remanded back to the 3rd respondent to finalise the assessment regarding luxury tax under Section 5A, after affording an opportunity of hearing to the petitioner, and after considering the objections raised. 3. Ext.P4 is the order issued by the 3rd respondent in compliance with the directions contained in Ext.P3 judgment. The 3rd respondent found that the car porch of the building is constructed as part of the building itself and since there is no separate car porch the area could not be W.P(C) No.35520 of 2010-L 3 exempted from the plinth area for the purpose of imposing luxury tax. 4. According to the petitioner the stand taken by the 3rd respondent is clearly illegal and is in violation of the provisions contained in proviso to Section 5(5). The petitioner also points out Ext.P1 circular issued by the State Government, wherein it is clarified that the plinth area of the car porch appurtenant to the residential building need be exempted. It is settled law by this time that, while calculating the plinth area of the residential building, the area of the car porch could not be reckoned. The distinction now attempted by the 3rd respondent as to whether the car porch is part of the building or not is not, is unsustainable in view of the settled legal position and in view of the circular issued by the Government. Therefore I am of the view that findings in Ext.P4 is not legal and sustainable and the matter requires further consideration. 5. Accordingly, the writ petition is allowed and Ext.P4 is hereby quashed. The 3rd respondent is directed to W.P(C) No.35520 of 2010-L 4 finalise the assessment under luxury tax (under Section 5A) afresh after conducting proper measurement of the building, if necessary with the help of an expert from the Public Works Department of the State Government having jurisdiction over the local area. 6. If the 3rd respondent finds that the total plinth area of the building, less the area of the car porch, is not coming within the statutory limit prescribed under Section 5A, the petitioner shall be exempted from payment for further periods. 7. A decision in this regard shall be taken after affording an opportunity of hearing to the petitioner at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 8. Needless to say that till such time recovery of the amount of luxury tax under Section 5A shall not be proceeded against the petitioner. C.K.ABDUL REHIM JUDGE ab