IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 26867 of 2005(W) --------------------------------------- PETITIONER(S): ---------------------- ABDUL LATHEEF K.V., S/O. YOUSUF, KURUPINTEKAYIL HOUSE, ANJOOR VILLAGE, POST CHERUVATHANI, THRISSUR DIST. BY ADV.MR.M.K.DILEEP KUMAR RESPONDENT(S): ------------------------- 1. THRISSUR DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR DIST. 2. THE TAHSILDAR, TALAPPILLY TALUK, THRISSUR DIST. GOVERNMENT PLEADER MR.K.D.PRADEEP FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26867/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ASSESSMENT ORDER OF ANNUAL TAX OF THE BUILDING OF THE PETITIONER BY THE ANJOOR PANCHAYAT DT. 3.8.98. P2:- COPY OF THE BUILDING TAX RECEIPT DT. 29.10.99 ISSUED TO THE PETITIONER BY ANJOOR PANCHAYAT. P3:- COPY OF THE BUILDING TAX RECEIPT DT. 14.8.00 ISSUED TO THE PETITIONER BY ANJOOR PANCHAYAT. P4:- COPY OF THE BUILDING TAX RECEIPT DT. 8.8.01 ISSUED TO THE PETITIONER BY KUNNAMKULAM MUNICIPALITY. P5:- COPY OF THE BUILDING TAX ASSESSMENT ORDER DT. 13.3.01 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE LUXURY TAX ASSESSMENT ORDER DT. 19.2.03 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. P8:- COPY OF THE ORDER DT. 6.12.04 PASSED BY REVENUE DIVISIONAL OFFICER, THRISSUR. P9:- COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P10:- COPY OF THE ORDER DT. 16.4.05 PASSED BY THE IST RESPONDENT. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C.NO.26867 OF 2005 ---------------------------- DATED THIS THE 6TH DAY OF MARCH, 2009 JUDGMENT Petitioner has constructed a new house after demolishing the old one. The property was formerly within the Panchayat area and presently falling in Kunnamkulam Muncipal Area. According to the petitioner, the construction was completed in the year 1997 and that the Panchayat determined the annual rental value and assessed the annual tax at Rs.1,786/-. The assessment order dated 3/8/1998 is marked as Ext.P1. Panchayat has been collecting the property tax at the same rate in the subsequent years as well. The Panchayat area was annexed to the Kunnamkulam Municipality and the petitioner has to pay the property tax to the Municipality. 2. In the meantime, the Tahsildar proceeded to assess the building under the Kerala Building Tax Act and the tax amount was fixed to Rs.22,200/- based on the plinth area. Ext.P5 -2- W.P.(C).No.26867/2005 is the assessment order. Ext.P6 is the another assessment order passed under Section 5-A of the Kerala Building Tax Act finding that the petitioner is liable to pay luxury tax, since the building was constructed on or after 1-4-1999. 3. Petitioner was employed in the Middle East and he used to come to Kerala for a short visit. It is submitted that he submitted a reply to Ext.P6 assessment order; but the same contains mistaken statement that he has completed the building in the year 2001. The petitioner also remitted luxury tax for three years totalling to Rs.6,000/-. According to the petitioner, on realising the mistake he submitted Ext.P7 before the Tahsildar requesting to review of the assessment order for the reason that the building was completed long before 1-4-1999. Since the Tahsildar did not consider Ext.P7, the petitioner preferred an appeal before the Revenue Divisional Officer. He passed Ext.P8 order dismissing the appeal as time barred. The petitioner preferred a revision before the District Collector. Ext.P10 is the -3- W.P.(C).No.26867/2005 order passed by the District Collector. It is submitted that the petitioner produced all the relevant documents, which include assessment orders and the receipts of payment of property tax before the Panchayat and subsequently to the Municipality, which evidently show that the petitioner had completed the building long before 1-4-1999 and therefore his building was assessed to property tax by the local authority. The submission of the petitioner that the date of completion stated in his reply to the original assessment order passed by the Tahsildar is a mistake and he may be permitted to correct the mistake was not accepted by the District Collector. There is no attempt made by any of the authorities under the Luxury Tax Act to find out whether the submission of the petitioner is correct or not. If he had made a mistake in making a submission that the building was completed in the year 2001 whereas the building was completed in the year 1997, the authority should have given an opportunity to the petitioner to prove that there is a mistake and pass revised -4- W.P.(C).No.26867/2005 orders accordingly. 4. In the circumstances, there will he a direction to the Tahsildar to ascertain whether the building was completed before 1-4-1999 and the reason for assessment of property tax by the local authority for the years 1998-99. If the Tahsildar finds that the building was completed in the year 1997, there is no justification for imposing luxury tax. If there is a mistaken statement filed by the petitioner, who is a non-resident Indian, the authority should have taken into account the said circumstances. After making requisite enquiry with notice to the petitioner, the Tahsidar shall pass fresh orders under Section 5-A of the Kerala Building Tax Act. 5. In the result, Exts.P6, P8 and P10 orders are quashed. The Tahsildar shall pass fresh orders within a period of three months from the date of receipt of a copy of this judgment. All further proceedings for realisation of the luxury tax shall be kept in abeyance, till the matter is disposed of by the Tahsildar. -5- W.P.(C).No.26867/2005 In the event of finding that the building was completed before 1-4-1999 and therefore not liable to pay luxury tax, there will be a direction to the Tahsildar to refund the luxury tax amounts paid by the petitioner. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.