IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 27824 of 2009(W) -------------------------- PETITIONER(S): --------------- M. MOIDEEN KUNHI, KOOLIKKAD, CHITHARI P.O., HOSDURG, KASARGOD. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE TAHSILDAR, HOSDURG, KASARAGOD. 2. THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD. 3. THE DISTRICT COLLECTOR, KASARAGOD. BY GOVT. PLEADER SRI. A.J. VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 27824 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2009 J U D G M E N T 1. Challenge in this writ petition is against Ext.P4 assessment order of the Building Tax, which is confirmed in appeal and further in revision. Ext.P4 is assailed mainly on two grounds, one regarding correctness of plinth area and another regarding date of completion of construction of the building. According to the petitioner he is not liable to pay luxury tax under Section 5 A of the Act, since the date of completion of construction of the building is during the year 1995-96. Ext.P8 is the order on the revision petition issued by the District Collector. It is noticed that, with respect to the dispute pertaining to plinth area, various authorities have made repeated measurements and the plinth area was found to be correct as mentioned in the assessment order. The petitioner conceded that he is now limiting his W.P.(C)No. 27824 of 2009 -2- challenge only with respect to the liability for payment of luxury tax under Section 5 A. 2. Contention of the petitioner is that the date of completion of construction is prior to 01.04.1999. It is evident that the petitioner had produced various documents such as certificate issued by the Secretary of the Grama Panchayath, receipt evidencing payment of property tax due to the Panchayth, etc., which will reveal that the building in question was assessed with property tax payable to the Grama Panchayat during the year 1995-96. But the revisional authority had discarded those evidences on the premise that the petitioner had conceded the date of completion of the building as 10.01.2002, and the date of occupation as 10.03.2002, in the return submitted in Form No.II. It is further observed by the revisional authority that going by the provisions under Section 5 A of the Act the construction of the building shall be deemed to have been completed when it is ready for occupation or actually occupied which ever is earlier, and hence the letter issued W.P.(C)No. 27824 of 2009 -3- by the Panchayath cannot be considered as evidence of actual occupation or as evidence of readiness for occupation, in view of the admission made by the petitioner regarding the date of completion. According to the petitioner the date of completion happened to be mentioned in the return due to a bonafide mistake and all the documentary evidences produced by him will reveal that the building in question was completed as early as in 1995. It is to be noted that if the construction is actually completed prior to 01.04.1999, the building is to be treated as one kept ready for occupation as on that date, even if it is not actually occupied. Merely because the date of completion of the building was happened to be mistakenly mentioned in the return filed, it is not justifiable to discard all other convincing evidences, if available. 3. Under the above mentioned circumstances, I am of the opinion that notwithstanding the date mentioned in the return submitted, the authority concerned are bound to look into the reliable evidence if any produced by the W.P.(C)No. 27824 of 2009 -4- petitioner, in order to ascertain as to whether the building was actually completed construction prior to 01.04.1999. Therefore Ext.P4 which now stands confirmed in Ext.P8 is hereby quashed, to the extent it imposes liability of luxury tax under Section 5 A. The matter is remanded for fresh consideration and disposal by the 1st respondent. The 1st respondent shall issue notice to the petitioner and afford him opportunity to adduce evidence and for hearing. He shall be permitted to produce additional evidence if any in support of his claim. The 1st respondent may also make verification of the records and documents available with the Grama Panchayath, if necessary in order to arrive at a conclusion regarding the date of completion of construction. 4. It is made clear that if the assessing authority is convinced that the building in question was completed construction prior to the cut-off date, then the petitioner shall be exonerated from the liability for payment of luxury tax under Section 5 A. Fresh orders in this regard may be issued by the 1st respondent as early as possible, at any rate W.P.(C)No. 27824 of 2009 -5- within a period of two months from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE shg/