IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WP(C).No. 36493 of 2009(F) -------------------------- PETITIONER --------------- THAHIRA, W/O.KASIM AARAYAKOOL, QUAHIRA, PANNIANNUR P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS: --------------- 1. THE REVENUE DIVISIONAL OFFICER, THALASSERY, KANNUR DISTRICT. 2. THE TAHSILDAR, TALASSERY, KANNUR DISTRICT. 3. THE VILLAGE OFFICER, PANNIANNUR, KANNUR DISTRICT. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. MR. CBIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 36493 OF 2009 ......................................................................... Dated this the 7th January , 2010 J U D G M E N T The grievance of the petitioner is mainly with regard to the fixation of liability to pay Luxury Tax under Section 5A of the Kerala Building Tax Act and the consequential steps taken by the concerned respondent invoking the machinery under the Revenue Recovery Act. 2. The case of the petitioner is that the 'plinth area' of the building has been calculated by the Assessing Authority also reckoning the area of the 'car porch' and the area earmarked for 'firewood storage' , which will not come within the the purview of the plinth area, in view of the law declared by this Court in Subhashchandra Babu vs. State of Kerala (2006 (2) KLT 189). 3. The learned Counsel for the petitioner submits that the position in this regard has been clarified as per Ext.P4 Circular as well and the position becomes more clear as per the dictum in Jayakumar vs. State of Kerala ( 2006(2) KLT 34 ). W.P.(C) No. 36493 OF 2009 2 4. The learned Government Pleader appearing for the respondents submits that the matter had already become final, since the appeal preferred by the petitioner has already been considered and rejected by the appellate authority years back. But a Division Bench of this Court has already held, as per the decision in Mohamad Sadik vs. Tahsildar (2006(3) KLT 271) that unlike the case of 'building tax' payable under Section 5, the liability to pay 'luxury tax' under Section 5A is a recurring one and that the matter can be pursued and proceeded with in respect of the assessment of any year, notwithstanding the fact that the assessing authority has already arrived at a finding to the contrary in respect of the previous years. The same logic and reasoning very much applies to the proceedings before the appellate authority as well. As such, this Court finds it fit and proper to have the matter considered afresh by the second respondent, as projected by the petitioner in Exts.P5 and P6, to the extent they pertain to fixation of liability under Section 5A quantifying the luxury tax payable in respect of the 'future years' in question. W.P.(C) No. 36493 OF 2009 3 5. In the above circumstances, the second respondent is directed to consider and pass appropriate orders on Exts.P5 and P6 regarding fixation of 'luxury tax' under Section 5A for the future years, in accordance with law, after giving an opportunity of hearing to the petitioner and the proceedings in this regard shall be finalised, as early as possible, at any rate, within two months from the date of receipt of a copy of the judgment. It is made clear that till such final orders are passed on Exts. P5 and P6, all such proceedings pursuant to Ext.P7 and P7(a) shall be kept in abeyance. It is also made clear that the relief granted as above is confined only in respect of the future liability and the amount already paid towards luxury tax in respect of the previous years is not liable to be refunded under any circumstances. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk