IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 10658 of 2005(R) -------------------------- PETITIONER(S): --------------- LUKOSE PAULOSE, KIDANGATTIL, CHETHICODE P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENT(S): --------------- TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. BY G.P. SRI.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: (i-iii) TRUE COPIES OF BUILDING TAX RECEIPT. P2: TRUE COPY OF ASSESSMENT ORDER DT.18.3.03. P3: TRUE COPY OF R.R. NOTICE. P4: TRUE COPY OF PETITION OF THE PETITIONER TO THE RESPONDENT. P5: TRUE COPY OF CERTIFICATE ISSUED BY THE SECRETARY, EDAKKATTUVAYAL GRAMA PANCHAYAT. RESPONDENT'S EXHIBITS: R(a): TRUE COPY OF THE RETURN. R(b): TRUE COPY OF THE REPORT FILED BY THE VILLAGE OFFICER, EDAKKATTUVAYAL. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.10658 of 2005 .................................................................... Dated this the 31st day of October, 2008. JUDGMENT The W.P. is filed challenging demand and recovery proceedings for recovery of luxury tax in respect of petitioner's residential building. While the case of the petitioner is that construction of the building was completed in 1993, the case of the Tahsildar is that petitioner himself in the building tax return declared period of completion of construction of the building as September 2000 and occupation in February 2001 and consequently luxury tax is found payable under Section 5A of the Kerala Building Tax Act. In the normal course, when date of completion of construction and occupation is declared in the return, the Tahsildar has to just follow it and raise the demand. However, in this case the petitioner has a specific case that construction of the building was completed in 1993 and he has produced tax receipts from the Panchayat pertaining to collection of property tax for the building. The Village Officer has also stated that the Panchayat records show that construction of building was completed in 1993. However, it is not known why the petitioner did not file return and pay building tax in 1993 itself and delayed filing of the return years thereafter. Even if 2 building is constructed in stages, still luxury tax is payable, if the construction of plinth area exceeding 278.7 sq. metres is done after 1.4.1999. It is a very common practice for Panchayat authorities to collect tax and number building for applying for electricity connection, water connection etc. before completion of construction. Therefore, Panchayat records are not conclusive evidence about date of completion of construction of building. However, there will be other records like details of electricity connection taken on regular basis which show the connected load, deposit collected and payment of monthly bills by the petitioner. Similarly the Panchayat Register may show the plinth area of the building originally assessed. It is for the petitioner to produce documents pertaining to electricity connection, the first electricity bill paid and the copies of Panchayat Register before the Tahsildar and convince him about date of completion of construction. The Tahsildar is directed to consider the documents and other evidence produced by the petitioner to establish his case and pass fresh orders about date of completion of construction of the building and the plinth area and based on the same, either to withdraw the demand or to raise demand for luxury tax. The Tahsildar is directed to pass 3 fresh orders within a period of two months from now. The petitioner will produce copy of this judgment before the Tahsildar for compliance. W.P. is disposed of as above. C.N.RAMACHANDRAN NAIR Judge pms