IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 3618 of 2011(B) --------------------------------------- PETITIONER(S): ---------------------- THEKKEYIL RAHMATH, 'REHMAS', NEDUVATTUM KUNNU, P.O. MATTANNUR, PIN- 670 702, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN, SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL. RESPONDENT(S): ------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT , SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE REVENUE DIVISIONAL OFFICER, THALASSERI, THALASSERI P.O., 670 643. 3. THE TAHSILDAR, THALASSERI TALUK, THALUK OFFICE, THALASSERI, 670 643. R1 TO R3 BY GOVT. PLEADER MR.BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. *********************** W.P(C) No.3618 of 2011 ***************************** Dated this the 8th day of February, 2011 JUDGMENT Issue involved in this Writ Petition pertains to liability for payment of luxury tax under Section 5A of the Kerala Building Tax Act, 1975. As per Ext.P3 order of assessment, the residential building of the petitioner was assessed with building tax under Section 5 of the Act reckoning the plinth area of the building as 283.31 m2. Ext.P3(a) is the assessment with respect to the luxury tax, wherein the petitioner was requested to remit tax @ Rs.2,000/- for the years 2007-08 and 2008-09. The petitioner had paid the building tax as assessed. But the assessment of luxury tax under Section 5A was taken up in appeal on the basis of the contention that the measurement of the plinth area is not correct and that the building in question is within the limit of 278.70 m2 prescribed under Section 5A. 2. The appellate authority found that as per the report of the Village Officer, the plinth area is only 251.72 m2. But it is observed that the authorised officer had reported after site inspection that the total plinth area is 283.31 m2. It is further mentioned that the petitioner had produced the approved plan of W.P(C) No.3618 of 2011 2 the building in question. The copy of the building permit and approved plan are produced herewith as Exts.P1 and P2, which will indicate that the plinth area of the building is 274.73 m2. However, without considering the discrepancy between the measurements, the appellate authority observed that during inspection it was found that there is no variation in the measurement. 3. The order of the appellate authority was not seen challenged by filing any revision before the authority empowered under Section 13 of the Act; on the other hand it is evident that the petitioner had filed a complaint before the Government as evidenced from Ext.P5. Ext.P6 is the reply issued by the Government, wherein it is stated that the report of the Tahsildar submitted to the Government revealed that the plinth area of the building is 282.60 m2. 4. The learned counsel appearing for the petitioner points out that there is difference between the extent of the plinth area as far as the four measurements available, as enumerated above. Therefore the contention is that none of the authority had conducted a proved measurement after complying with the procedure contemplated under Section 23 of the Act. It W.P(C) No.3618 of 2011 3 is the complaint of the petitioner that none of the authorities had issued any proper notice regarding the inspection conducted and the petitioner was not given any opportunity to point out discrepancy, if any, regarding measurement. It is also the contention that area covered by car porch and place for storage of firewood etc. are liable to be exempted. 5. Considering the contention as above, I take note of the fact that the petitioner has not chosen to challenge the appellate order by filing the statutory revision. However, it is to be noticed that assessment of luxury tax under Section 5A is a tax imposed on an yearly basis. The assessment in question is made on an year to year basis. This Court, while considering the issue in the decisions reported in Mohamad Sadik Vs. Tahsildar [2006(3) KLT 271] and Surendran Vs. District Collector, Thrissur [2010 (1) KLT 434], has categorically held that in assessment or payment of luxury tax with respect to the previous years will not preclude the assessee from disputing correctness of the assessment on prospective basis. 6. Considering the discrepancy in the measures as pointed out by the petitioner, I am of the opinion that it is only just and proper to afford the petitioner an opportunity to raise W.P(C) No.3618 of 2011 4 dispute with respect to the assessment on a prospective basis. Therefore the petitioner is given liberty to file objections before the 3rd respondent disputing liability for payment of luxury tax. If any such objection is received, the 3rd respondent shall consider the same and take a decision regarding the liability after conducting a proper measurement of the building with the assistance of an expert, preferably an Engineer of the Public Works Department having jurisdiction in the local area. The decision as directed above shall be taken only after taking the measurement with proper notice to the petitioner and after affording an opportunity of personal hearing to the petitioner. 7. It is made clear that the petitioner is liable for payment of tax assessed under Section 5 of the Act as well as the luxury tax due till the current year. If any balance is in arrears, the authority will be at liberty to take proper steps for collection and recovery. (C.K.ABDUL REHIM, JUDGE) rtr/