IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 29397 of 2005(Y) -------------------------- PETITIONER: ------------ V.S. SIDDIQUE, VATTAPPILLY HOUSE, NEAR GLORY PALACE, KAIPPAMANGALAM, TRICHUR. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRICHUR. 3. THE REVENUE DIVISIONAL OFFICER, TRICHUR. 4. THE TAHSILDAR, KODUNGALLUR. 5. THE VILLAGE OFFICER, KAIPPAMANGALAM. GOVERNMENT PLEADER SRI. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 29397/2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 14.12.2004. EXT.P2 TRUE COPY OF THE RECEIPT SHOWING PAYMENT OF BUILDING TAX DATED 27.12.2004. EXT.P3 TRUE COPY OF THE DEMAND NOTICE DATED 14.12.2004. EXT.P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDET DATED 30.1.2005. EXT.P5 TRUE COPY OF THE APPEAL FILED IN FORM NO.X BEFORE 3RD RESPONDENT DATED 18.2.2005. EXT.P5(A) TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 3RD RESPONDET DATED 18.2.2005. EXT.P6 TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 3RD RESPONDET DATED 26.3.2005. EXT.P7 TRUE COPY OF THE LETTER SENT BY THE 3RD RESPONDENT TO THE PETITIONER DATED 30.3.2005. EXT.P8 TRUE COPY OF THE RECEIPT DATED 1.4.2005. EXT.P9 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 29.9.2005. EXT.P10 TRUE COPY OF THE BUILDING PLAN. // TRUE COPY // P.S. TO JUDGE. KNC./- P.R. RAMAN & = = = = = = = = = W.P.(C) NO. 29397 OF 2005 = = = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF AUGUST, 2008. J U D G M E N T Petitioner seeks to quash Exts.P1, P3 and P9 produced in this writ petition. His building was assessed to luxury tax taking the plinth area as 284.40 m2. As per Section 5 A of the Building Tax Act, if the plinth area exceeds 278.7 M2 it is liable to be assessed for the purpose of luxury tax. But according to the petitioner, while calculating the plinth area, the area occupied by the car garage and the shed meant for storing firewood are also included and if these areas are excluded, the plinth area will come below 287.7 M2 and therefore, below the area prescribed for assessment of luxury tax. He placed reliance on the decision reported in Jayakumar v. State of Kerala (2006(2) KLT 34). 2. In the counter affidavit filed by the State, it is averred that the petitioner's building is a residential building constructed in 2003, the plinth area of which is 278.m2. It is true that in the decision reported in Jayakumar's case (supra) this court held that the garage area cannot be taken WP(C) 29397/2005 :2: into account while determining the plinth area of residential building. It is true that the area meant for storage of firewood should also be excluded for the purpose of determining the plinth area. But the exact area occupied by the garage or the shed meant for storing firewood is not stated in the writ petition. Petitioner has produced Ext.P5 and P5(a) which is a copy of memorandum of revision filed before the Revenue Divisional Officer,wherein he has specifically shown the area occupied by the garage as 210 sq.ft. and the firewood storage shed as 120 sq.ft. However, the authorities did not enter any finding regarding the actual plinth area excluding the garage and firewood storage shed obviously because the building was assessed to building tax and the petitioner had not raised any objection regarding the area and satisfied the demand for building tax by paying the amount in four instalments as contemplated by the rules. Only when a proceeding under Section 5A of the Act was initiated for assessment of luxury tax he raised a dispute regarding the plinth area of the garage and firewood shed. According to the respondents, one the petitioner accepted the assessment for the purpose of building tax, he cannot turn round and say that there is any dispute regarding the plinth area. Though it is not in so many words stated, it is impliedly taken that there is an estoppal or waiver WP(C) 29397/2005 :3: on the part of the petitioner by his conduct in not raising a dispute earlier. 3. The mere fact that amounts were paid towards building tax and the petitioner has not raised any dispute at that time will not constitute waiver or estoppal since the assessment now made is under a different provision namely, for luxury tax under Section 5 A of the Act. In tax matters even payment of the tax demanded on any particular issue being not agitated will not constitute res judicata in a subsequent year of assessment because each year of assessment is taken as different from the other. Further, there is no admission as such on the part of the petitioner that the plinth area as assessed by the authorities inclusive of the garage and the firewood storage shed is correct. For variety of reasons he might not have challenged the proceedings towards the building tax either because it is one time payment or that the difference in the amount if assessed excluding the disputed area may not be a big amount worth to challenge. Further, the question as to whether the area occupied by the garage is includable in the plinth area for assessment itself was doubtful. Earlier, a learned Judge of this Court, in Chandramohan v. Revenue Divisional Officer (2005(1) KLT 593) had taken a different view and held that the area occupied by the garage is includable. But the said decision was reversed by this Court in W.A. No. WP(C) 29397/2005 :4: 439/2005 and connected cases and later a Division Bench of this Court in Jayakumar's case (2006(2) KLT 34) also held that the the plinth area of garage cannot be taken into account while determining the plinth area of residential building, under the Act. Therefore, the question as to whether the area occupied by the garage is includable or not is a legal issue and there cannot be any estoppal when the said question arises in a subsequent proceedings. In the circumstances, the authorities ought to have considered whether on merits the area occupied by garage and firewood storage, if excludable, the plinth area of the building in question will come below 278.7 m2 in which case the liability to pay any luxury tax may not arise. Since this factual dispute has not been considered on merits, I set aside the impugned orders Exts.P1, P3 and P9 and direct the assessing officer to consider the actual area occupied by the garage and firewood shed and exclude such area from the total plinth area .and if it is below 278.7m2 the question of assessing the petitioner's building for luxury tax may not arise. On the other hand, even after exclusion of such area, still if it is found that the plinth area of the building is more than 278.m2, then he can be assessed to luxury tax. WP(C) 29397/2005 :5: 4. Fresh orders shall be passed subject to what is stated above. In case the petitioner has paid any amount during the pendency of the proceeding towards luxury tax in question and if it is found that he is not liable to pay any luxury tax, such amount paid by him shall be refunded; but however, without any interest. The writ petition is allowed as above. P.R. RAMAN, (JUDGE) knc/-