IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 9287 of 2011(I) -------------------------------- PETITIONER(S): --------------- SAJI P.THOMAS, SAJI BHAVAN,VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, COLLECTORATE, KOLLAM-13. 2. REVENUE DIVISIONAL OFFICER, COLLECTORATE, KOLLAM-13. 3. ASSESSING AUTHORITY & TAHSILDAR, KARUNAGAPPALLY, KOLLAM-690518. ADV. SRI. BIJOY CHANDRAN - GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9287 of 2011(I) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF PLAN OF THE PETITIONER'S RESIDENTIAL HOUSE. EXT.P2: COPY OF LETTER ISSUED BY R2 TO THE PETITIONER DTD 22.9.2010. EXT.P3: COPY OF APPEAL FILED BY THE PETITIONER BEFORE R2 DATED 29.10.2010. EXT.P4: COPY OF REJECTION LETTER DATED 3.12.2010. TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No. 9287 OF 2011 ---------------------------------------------- Dated this the 17th day of August, 2011 JUDGMENT The petitioner's residential building was assessed to building tax under the Kerala Building Tax Act. For that purpose, the plinth area of the building was calculated taking into account the area of the car porch as well. The petitioner did not challenge the assessment of building tax. But, along with the assessment for building tax, the petitioner was also assessed to luxury tax. The petitioner's contention is that if the car porch is excluded, the petitioner would not become liable to pay luxury tax. The petitioner submits that although the petitioner has not challenged the assessment to building tax, in view of the decision of this Court in Surendran v. District Collector, Thrissur [2010(1) KLT 434, the petitioner is entitled to challenge the luxury tax separately, since it is a recurring tax every year. The petitioner, therefore, seeks the following reliefs: “i) issue a writ of certiorari or any appropriate writ order or direction to quash Exts.P2 and P4 issued by the respondents. ii) Issue a writ of mandamus or any other W.P.(C)No.9287/11 2 appropriate writ, order or direction commanding the 3rd respondent to inspect the petitioner's building and carry out the measurements in the presence of the petitioner and pass appropriate orders based on the said inspection. iii) Declare that the powers of rectification of the assessing authority under sec.15 is not circumvented by the absence of challenge to the assessment under Section 9 of the act”. 2. I have considered the rival contentions in detail. The impugned orders have been passed on the ground that since the petitioner has not challenged the assessment of building tax on the same building, he cannot challenge the luxury tax imposed also. But, in the decision in Surendran's case (supra), this Court has categorically held that when demand on luxury tax is raised, the building owner can contest the liability, if the plinth area assessed is in excess over the actual area, even if the assessee has without contest paid the building tax on such wrong plinth area originally assessed. 3. In the above circumstances, I am of opinion that the authorities are liable to reconsider the issue reconsidering the question of plinth area. For this purpose, Exts.P2 and P4 orders are quashed. The 3rd respondent is directed to reconsider the question of luxury tax payable by the petitioner, after considering the contentions of the petitioner as to the W.P.(C)No.9287/11 3 plinth area applicable for assessment under the Act. This shall be done, after affording an opportunity of being heard to the petitioner and remeasuring the plinth area in the presence of the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.9287/11 4