IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 WP(C).No. 11690 of 2011(I) -------------------------- PETITIONER(S): --------------- K. RAMA SHENOY, S/O.R.S. KRISHNA SHENOY, AGED 61, C C 12/591 B, VISAKHAM, ARACKAPARAMBIL ROAD, COCHIN -2. BY ADV. SRI.G.KRISHNAKUMAR SMT.M.P.RETHNAM SRI.TITTO THOMAS RESPONDENT(S): --------------- 1. THAHSILDAR, TALUK OFFICE, KOCHI - 682 001. 2. VILLAGE OFFICER, THOPPUMPADY, KOCHI - 682 005. 3. DISTRICT COLLECTOR, KAKKANAD CIVIL STATION, ERNAKULAM-682 030. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. BY ADV.SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 11690 of 2011 ------------------------------- Dated this the 25th day of May, 2011. J U D G M E N T In this writ petition the petitioner is seeking a direction to effect refund of alleged excess amount of Building Tax and Luxury Tax, collected under the Kerala Building Tax, 1975. As evident from Ext.P2, residential building constructed by the petitioner was assessed for payment of the Building Tax to the tune of Rs.21,600/-, as early as on 19.3.2008. The assessment of Luxury Tax under section 5A was also made as per Ext.P3 order, issued on 19.6.2008. Contention of the petitioner is that, for the purpose of assessment of Building Tax, the 1st respondent had computed plinth area of the building by including the terrace portion which was covered by a Truss work. According to the petitioner, the calculation of plinth area is wrong, in view of the decision of a Division Bench of this Court in State of Kerala Vs. Southern Fisheries Corporation [2011(1) KLT 956 (DB)] and therefore the excess amount collected 2 W.P.(C).No. 11690 of 2011 is liable to be refunded. The petitioner also contends that if the tax is calculated by computing the actual plinth area less the terrace portion, he may not be liable for payment of Luxury Tax under section 5A. 2. Heard ; learned Government Pleader appearing for the respondent. As stated above, it is evident that the assessments of Building Tax and Luxury Tax was completed during March 2008. The petitioner has not chosen to challenge the assessments by resorting to any statutory remedy and he had paid the amounts under demand, without any protest. Merely because the legal position was declared through a decision rendered by this Court in the year 2011, the petitioner could not seek refund of any amounts. It is evident that, accepting the assessment the petitioner had already remitted the Luxury Tax due till the year 2009-10. The claim for refund with respect to the said amount is also unsustainable for the very same reason as stated above. 3. However, assessment of Luxury Tax under Section 3 W.P.(C).No. 11690 of 2011 5 A is made on an year to year basis. It is held by this Court in the decisions reported in Mohamad Sadik Vs. Tahsildar (2006(3) KLT 271) and in Surendran Vs. District Collector, Thrissur (2010(1) KLT 434) that merely because Luxury Tax was paid for any previous years, the assessee will not be precluded from raising challenges against the liability for payment of tax under section 5 A. Therefore, I am of the view that the petitioner can be permitted to raise objections regarding any assessment of Luxury Tax under section 5 A for further years. It is noticed that the petitioner had already submitted Ext.P4 objections before the 1st respondent. Ends of justice will be achieved if a direction is issued to the 1st respondent to consider and take a decision on the basis of Ext.P4, before proceeding with further assessment and demand of Luxury Tax under section 5 A. 4. In the result, the writ petition is disposed of directing he 1st respondent to consider Ext.P4 and to take a decision regarding liability of the petitioner for payment of 4 W.P.(C).No. 11690 of 2011 Luxury Tax under section 5 A, after affording an opportunity of personal hearing to the petitioner, taking note of the decision on the issue covered under the judgment cited above. Needless to say that any further demand for Luxury Tax can be issued only subject to such decision being taken by the 1st respondent. C.K.ABDUL REHIM, Judge ami/