IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 30582 of 2007(N) ---------------------------------------- PETITIONER(S): ----------------------- ANIRUDHAN V.M., MADHAVOM, CMC - 26, CHERTHALA. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND, SMT.A.B.SHRILATHA, SRI.JOVY GEORGE VARGHESE. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, TALUK OFFICE, CHERTHALA. 3. THE VILLAGE OFFICER, CHERTHALA NORTH VILLAGE, CHERTHALA. R1 TO R3 BY GOVT. PLEADER MR.I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30582 of 2007(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ASSESSMENT ORDER DATED 28/02/2001 OF THE 2ND RESPONDENT. EXT.P2: COPY OF THE RECEIPT NO.48 DATED 27/03/2001. EXT.P2(a): COPY OF THE RECEIPT NO.61 DATED 28/06/2001. EXT.P2(b): COPY OF THE RECEIPT NO.039 DATED 30/10/2004. EXT.P2(c): COPY OF THE RECEIPT NO.072 DATED 27/12/2004. EXT.P3: COPY OF THE NOTICE DATED 04/01/2002. EXT.P3(a): COPY OF THE ORDER NO.BT 473/00/REVISED DATED 30/01/2002 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER NO.LT 5/2002 DATED 13/05/2002 OF THE 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER NO.BT(A) 8/2002 (E-2921/2002) DATED 19/09/2002. EXT.P6: COPY OF THE ORDER NO.BT 473/00 DATED 18/05/2005 OF THE 2ND RESPONDENT. EXT.P7: COPY OF THE ORDER NO.FBC4-IA 346/2001 DATED 02/08/2005 OF THE COMMISSIONER OF LAND REVENUE. EXT.P8: COPY OF THE NOTICE NO.LT5/02 REVISED DATED 08/09/2005. EXT.P9: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR REVENUE DATED 06/10/2005. EXT.P10: COPY OF THE LETTER NO.BT 473/00 (LT 5/02) G2 DATED 20/11/2006. EXT.P11: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR FINANCE. EXT.P12: COPY OF THE GOVERNMENT LETTER NO.02879/SC1/07/RD DATED 17/01/2007. EXT.P13: COPY OF THE DEMAND NOTICE. WP(C).No. 30582 of 2007(N) EXT.P14: COPY OF THE NOTICE PRIOR TO ATTACHMENT OF LAND ISSUED BY THE 2ND RESPONDENT. EXT.P15: COPY OF THE LETTER DATED 09/03/2007 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P16: COPY OF THE LETTER NO.02879/SC1/07/RD DATED 28/03/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 30582 OF 2007 ......................................................................... Dated this the 28th September, 2010 J U D G M E N T The issue involved in this Writ Petition is with regard to the fixation of 'Luxury Tax' under Section 5A of the Kerala Building Tax Act, by reckoning the area covered by 'car porch' as part of the 'plinth area' of the building constructed by the petitioner. 2. The sequence of events is as follows: The petitioner constructed a building way back in the year 2000, in respect of which the assessment under Section 5 of the Act was finalised as per Ext.P1 assessment order passed by the second respondent, whereby the plinth area was reckoned as 289.155m2 and the tax liability was fixed as Rs.10,200/- which in fact was satisfied by the petitioner as borne by Ext.P2 series receipts. While so, the second respondent sought to re-open the assessment issuing Ext.P3/P3(a) alleging that there was a short W.P.(C) No. 30582 OF 2007 2 levy and further sought to recover 'Luxury Tax' under Section 5A of the Act as ordered vide Ext.P4 dated 13.05.2002. Met with the situation, the petitioner preferred statutory appeal before the RDO and after considering the merits involved, the impugned orders were set aside by the RDO and the matter was remitted to the second respondent for fresh consideration, as specified in Ext. P5. 3. Pursuant to Ext. P5 appellate order, the matter was re- considered by the second respondent and on meticulous analysis of the facts and figures, the second respondent came to the finding that the actual plinth area of the building was only 276.87 m2, attracting the tax liability only to the tune of Rs.7,800/-. Accordingly, Ext. P6 order was passed, fixing the liability under Section 5 of the Act as above. Since the petitioner has already paid a sum of Rs.10,200/- pursuant to Ext. P1 assessment order, as revealed from Ext. P2, no further amount is to be paid by the petitioner. While so, the second respondent issued Ext. P7 proceedings dated 13.09.2005, observing that the area occupied by the 'car porch' to an extent of 22.13 m2. W.P.(C) No. 30582 OF 2007 3 also was liable to be added to the plinth area already reckoned, thus taking the total plinth area to 299. m2 (276.87 m2 + 22.13 m2 ) and thus to fix the tax liability accordingly. On the basis of Ext.P7, Ext. P8 order was also issued demanding 'Luxury Tax' under Section 5A @ Rs.2000/- per year. The case of the petitioner is that the above proceedings, Exts.P7 and P8, were issued without any notice to the petitioner and without any regard to the relevant provisions of law or binding judicial precedents. Despite taking the matter by filing several representations before the higher-ups including the Government, the same did not turn to be fruitful, which made the petitioner to approach this Court by filing the present Writ Petition. 4. Heard the learned Government Pleader as well. 5. Going by the contents of the materials on record and also taking note of the fact that no counter affidavit has been filed from the part of the respondents disputing the facts and figures as given by the petitioner, it remains an admitted fact that the actual plinth area of the building constructed by the petitioner is only 276.87 m2, except the area occupied by the W.P.(C) No. 30582 OF 2007 4 'car porch', which is having 22.13 m2 as given in Ext.P7. Even according to the second respondent, the plinth area shown in Ext.P7 is 299 m2 (i.e. actual area of the building 276.87 + 22.13 m2, the area occupied by the 'car porch'). But for inclusion of the area occupied by the 'car porch', the area of the building will not take it to be assessed under Section 5A, as the minimum area to attract the said provision is 278.7 m2. There is also no case that Exts.P7 and P8 were issued after giving an opportunity of hearing to the petitioner, as no such notice has been referred to either in Ext.P7 or in Ext.P8. For this reason itself, Exts.P7 and P8 are not sustainable in the eye of law, in view of flagrant violation of principles of natural justice . 6. Coming to the merits of the case, as pointed out already, the liability has now been mulcted on the shoulders of the petitioner, issuing Exts.P7/P8 under Section 5A with regard to payment of 'Luxury Tax', only by virtue of inclusion of area occupied by the 'car porch', but for which, no liability can be fastened on the petitioner. Then the only question to be considered is whether the area occupied by the 'car porch' could W.P.(C) No. 30582 OF 2007 5 be included or not. The legal position in this regard has already been answered by a Division Bench of this Court as per the decision rendered in Subhashchandrababu vs. State of Kerala (2006(2) KLT 189) holding that 'car porch' is not liable to be included or reckoned for the purpose of fixation of plinth area. This being the position, the proceedings pursued by the second respondent including 22.13 m2 as part of the plinth area of the building, is liable to be excluded. Accordingly, Exts.P7 and P8 are hereby set aside. Since the remaining area is only 276.87 m2 as held by the second respondent himself in Ext. P6, which has become final, it is declared that the petitioner is not liable to satisfy any amount towards 'Luxury Tax' under Section 5A. 7. Taking note of the specific contention of the petitioner that he is liable to satisfy only the amount covered by Ext.P6, i.e. Rs.7800/- and admittedly the petitioner has satisfied a sum of Rs.10,200/- pursuant to the original assessment order (Ext. P1) as borne by Ext. P2, the balance amount is liable to be returned to the petitioner. In the above circumstance, the second respondent is directed to return the said amount, in excess of W.P.(C) No. 30582 OF 2007 6 the liability as covered by Ext. P6, within three months from the date of receipt of a copy of this judgment. The Writ Petition is allowed to the above extent. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk