IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WA.No. 1729 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.18699/2003 Dated 12/06/2009 .................... APPELLANT(S): RESPONDENTS IN THE WPC. ------------------------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, KOTTAYAM. BY G.P. SRI.MOHAMMED RAFIQ RESPONDENT(S): PETITIONER IN THE WPC ------------------------------------ JAMES JOSEPH, ORAVANAKALM HOUSE, KUMARAKAM P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN K THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... Writ Appeal No.1729 of 2009 .................................................................... Dated this the 5th day of August, 2009. JUDGMENT Ramachandran Nair, J. Heard Government Pleader appearing for the appellant and counsel appearing for the respondent. The contention of the State is that after declaring date of completion of construction of the building as July 2000 and date of occupation of the building as 20.7.2000, in the return filed by the respondent, he denied the same and claimed that building was constructed in the year 1996. The learned Single Judge, however, referred to the partition deed, telephone bill, electricity bill and the Panchayat building tax assessments and held that these documents clearly prove that construction of the building was completed prior to 1.4.1999 and therefore, no luxury tax is attracted under Section 5A of the Kerala Building Tax Act. During hearing before us, we queried with the counsel for the respondent as to why a completely wrong statement was given about date of completion of construction and occupation of the building in the building tax return 2 filed before the Tahsildar which is the basis of the case of appellant. However, he emphatically denied the respondent filing a return mentioning date of completion of construction or occupation of the building. Counsel for the respondent further contended that respondent is a non-resident and he is not aware of any return filed for the building. According to him, the power of attorney was also not served any assessment notice. This is a common problem in the case of non- residents because some relative or other file statements or returns and when adverse orders are issued, the parties choose to deny the transaction. However, we make it clear that mistakes committed should not lead to any liability for the respondent. If there were no new construction or addition to the building after 1996, then we feel the documents relied on by the learned Single Judge are sufficient evidence to allow the claim of the respondent that the construction of the 3 building was completed prior to April 1999. However, we feel the more appropriate course will be to give an opportunity to the Tahsildar to have an inspection of the building and to refer to the documents produced by the respondent and relied on by the learned Single Judge. If he finds that these documents relate to any old building which got reconstructed after 1.4.1999, certainly he can demand luxury tax. However, if there is no new construction or major alteration after 1996, then there is no scope for levy of luxury tax. The Writ Appeal is, therefore, disposed of vacating the findings of the learned Single Judge, but leaving freedom to the respondent to produce the entire documents before the Tahsildar for him to conduct inspection, verify the records and to pass orders. We make it clear that without establishing that the respondent has completed construction after 1.4.1999, the Tahsildar should not demand luxury tax merely because 4 some wrong statement is given in the return filed. The respondent or the power of attorney holder or any other person authorised by him will produce copy of this judgment before the Tahsildar, who will decide the matter after issuing notice to such authorised person. The Tahsildar will also verify the return filed earlier and if the person now authorised by the respondent has in fact filed the said return, then he should not be permitted to represent the respondent hereafter before him. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms