IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WA.No. 1423 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.10308/2006 Dated 20/02/2009 APPELLANT/PETITIONER: -------------- SASIDHARAN AGED 60 YEARS, S/O.SANKARA PANICKER ANIYANS HOUSE, KRISHNAPURAM VILLAGE, KARTHIKAPALLY TALUK. BY ADV. SRI.R.REJI RESPONDENTS/RESPODENTS: --------------- 1. THE DISTRICT COLLECTOR ALAPPUZHA DISTRICT. 2. THE R.D.O.CHENGANNUR 3. THE TAHSILDAR KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. 4. THE SECRETARY KRISHNAPURAM GRAMA PANCHAYATH KRISHNAPURAM PO., KAYAMKULAM,ALAPPUZHA DISTRICT. GVT. PLEDER SRI K.P. PRADEEP. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = W.A. NO. 1423 OF 2009 = = = = = = = = = = = = = = = DATED THIS, THE 6TH DAY OF JULY, 2009. J U D G M E N T Raman, J. Appellant is the writ petitioner in W.P.(C) 10309/2006. He was assessed to Luxury Tax under Section 5a of the Kerala Building Tax Act. for the year 2000-2001 to 2002-2003. Though he paid the building tax, he disputed his liability to pay luxury tax under Section 5A and challenged the assessment; but was not successful. Finally, he challenged the same in the writ petition. The learned Single Judge, followed the decision in Simon vs. Tahsildar (2008(3) KLT 826) wherein it is held that if the plinth area is increased by major addition or extension, building tax shall be paid for the total plinth area of the building including that of the new extension or major improvement or major repair. Hence it was held that petitioner having effected major addition after 1.4.1999, the crucial date for attracting the provisions under Section 5A, is disentitled from seeking any exemption from payment of luxury tax. Aggrieved thereby, he has preferred this appeal. W.A. NO. 1423/2009 :2: 2. We have heard the parties. The decision reported in Simon's case (2008(3) KLT 826) was on the question of constitutionality of the provisios contained in Section 5(4) of the Kerala Building Tax Act. The Division Bench held that such provision is constitutionally valid. The contention as to whether assessment in respect of a building can be reopened based on subsequent assessment was considered and held that adoption of plinth area as the basis or mode for assessing the liability is legally valid. Further, it has to be noticed that when there is a change in the plinth area by the subsequent construction or extension as the case may be, what is assessed subsequently is only the additional area. 3. But it can be seen that it was not a case considering the provisions of Section 5A of the Act. Subsequently, a Division Bench of this Court in Joy Joseph v. District Collector (2009(2) KLT 348) has taken the view that if any construction is made on or after 1.4.1999 in the form of a building or an addition to an existing building and if the plinth area of that construction exceeds 278.7 sqmts, it is exigible to luxury tax. But if any area is constructed before 1.4.1999 it was held that legislation relating to tax has to be strictly construed and by interpreting and extending the meaning of the words, no new liability can be imposed on the citizen. The court did not agree with the view that any construction made prior to W.A. NO. 1423/2009 :3: 1.4.1999 is also liable to be included and added on to the subsequent construction to attract Section 5A of the Act. Merely because there is any additional construction, the construction already completed before 1.4.1999, if it is brought in or roped in to reckon the total plinth area, necessarily, it will be imposing a tax on the area constructed prior to 1.4.1999 even before commencement of Section 5A. In view of the above Division Bench decision of this Court, the judgment under appeal is to be set aside. It is declared that any portion of the construction made prior to 1.4.1999 is not liable to be included for the purpose of imposition of luxury tax. It admits of no doubt that the remaining extent is less than the area prescribed to attract Section 5A in this case. Hence the assessments are liable to be set aside. We do so. The appeal is allowed. The amount paid as a condition for obtaining stay will be refunded within a period of three months. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-