IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 2936 of 2010(N) ------------------------------------ PETITIONER(S): ----------------------- K.IBRAHIM, AGED 72 YEARS, S/O.T.M.MUHAMMED, NEAR ALP SCHOOL, P.O.THAIKADAPPURAM, NILESHWAR, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, KASARGODE. 2. THE REVENUE DIVISIONAL OFFICER, KANHANGAD. 3. THE TAHASILDAR, HOSDURG, P.O.KANHANGAD. 4. THE NILESHWAR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, NILESHWAR.P.O, KASARGODE DISTRICT. R4 BY ADVS. SRI.M.V.AMARESAN, SRI.V.N.RAMESAN NAMBISAN. R1 TO R3 BY GOVERNMENT PLEADER SRI.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2936/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPROVED PLAN. P2:- COPY OF THE ASSESSMENT ORDER DTD. 14.3.2005. P3:- COPY OF THE ASSESSMENT NOTICE DTD. 18.6.2005. P4:- COPY OF THE CERTIFICATE DTD. 5.8.2005. P5:- COPY OF THE APPELLATE ORDER DTD. 19.5.06. P6:- COPY OF THE REVISIONAL ORDER DTD. 12.8.2009. P7:- COPY OF THE LAND TAX RECEIPT. P8:- COPY OF THE LAND TAX RECEIPT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 2936 of 2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010. JUDGMENT The petitioner is the owner of a residential building bearing number XVI/55 (old number IV/206-A). The challenge is against the assessment of luxury tax which has been confirmed in revision by the District Collector. Ext.P2 is the order of assessment whereby Rs.2,000/- per year has been assessed as luxury tax. Ext.P5 is the order passed in appeal and Ext.P6 is the order passed in revision. 2. Learned counsel for the petitioner raised two contentions. First one is that the construction was completed prior to 1.4.1999 and therefore the petitioner cannot be made liable for the payment of luxury tax. It is further contended that the plinth area covered by the car porch has to be excluded and if that be so, no assessment can be made. It is pointed out that even though the said point was raised before the revisional authority, there is no consideration of the same in Ext.P6. 3. With regard to the date of completion of the building, true that in Ext.P4 it is stated that the building was constructed in 1998-1999 and the building number allotted is XVI/55. But a reading of the order passed by wpc 2926/2010 2 the District Collector shows that the petitioner in the return filed, showed the date of completion as June 2002. The return was filed in 2004. Therefore, the District Collector was not persuaded to accept the said contention. In that view of the matter, it cannot be said that the view taken in Ext.P6 is totally incorrect. The next aspect is regarding the plinth area which was assessed as 290.06 square meter. Learned Govt. Pleader submitted that there was no claim going by the return submitted, to reduce the area covered by the car porch. It is therefore pointed out that the order of assessment cannot be interfered with by this Court at this distance of time. 4. Going by the decision of a Division Bench of this Court in Subhashchandrababu v. State of Kerala (2006 (2) KLT 189), the plinth area of any other erection or structure appurtenant to a residential building shall not be taken into consideration for assessing the plinth area of that building. This Court considered the proviso to Section 5(5) of the Building Tax Act which expressly exempts the plinth area of a garage. Accordingly, the said area cannot be added to the total plinth area of the building. 5. The assessment herein has been finalised and the amounts have been remitted upto the year 2004-2005. This is evident from the affidavit wpc 2926/2010 3 filed by the petitioner along with I.A. No.2663/2010. Exts.P7 and P8 are the copies of receipts showing the same. 6. Since, evidently no claim was put forward by the petitioner during the period of assessment, the assessment cannot be faulted. But still, in the light of the recent decision of a Division Bench of this Court in Surendran v. District Collector, Thrissur (2010 (1) KLT 434) in which it was held that “when demand on luxury tax is raised, building owner is free to contest the liability if the plinth area assessed is excess over the actual, no matter he has without contest paid building tax on such wrong plinth area originally assessed,” it is open to the petitioner to raise the said contention before the original authority. Going by Ext.P3, assessments have been completed and the amounts have been remitted. Therefore, those need not be reopened now. But going by Ext.P9, demands have been made upto the year 2010- 2011. Evidently, separate assessment orders had to be issued for the periods from 2006-2007 onwards. Therefore, the petitioner can raise his contentions with regard to the non exclusion of the plinth area covered by the garage before the original authority by filing appropriate representation, along with a copy of this judgment in respect of the periods from 2006- 2007. Thereafter, the assessing authority will verify the matter by deputing wpc 2926/2010 4 a competent officer to measure out the plinth area covered by the garage and then finalise the assessment after hearing the petitioner and after considering the dictum laid down in Subhashchandrababu's case (2006 (2) KLT 189). Learned counsel for the petitioner submitted that the verification of the plinth area may be made through the concerned Assistant Engineer in the locality of the Public Works Department and he is prepared to bear the expenses for the same. The said request will be adhered to by the assessing officer. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/