IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 18699 of 2003(A) --------------------------------------- PETITIONER(S): ------------------------ JAMES JOSEPH, ORAVANAKALM HOUSE, KUMARAKAM P.O., KOTTAYAM. BY ADVS. MR.MATHEW JOHN (K) MR.SUJESH MENON V.B. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, KOTTAYAM. GOVERNMENT PLEADER MR.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.4599/2003 IN OP. NO.18699/2003 DISMISSED 12/06/2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PARTITION DEED DT. 10.12.96. P2:- COPY OF THE RELEVANT PORTION OF THE BUILDING TAX ASSESSMENT REGISTER YEAR 96-97. P3:- COPY OF THE TELEPHONE BILL DT. 1.12.98. P4:- COPY OF THE METER CARD DT. 17.7.98. P5:- COPY OF THE RECEIPT EVIDENCING PAYMENT OF TAX DT. 13.9.96. P6:- COPY OF THE OBJECTION FILED BY THE PETITIONER DT. NIL. P7:- COPY OF THE ORDER BY THE 2ND RESPONDENT DT. NIL. P8:- COPY OF THE NOTICE DT. NIL. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE RETURN. R2(b):- COPY OF THE ASSESSMENT ORDER. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 18699 OF 2003 ......................................................................... Dated this the 12th June, 2009 J U D G M E N T The petitioner's case is that the assessment of 'luxury tax' effected by the second respondent under Section 5A of the Kerala Building Tax Act in respect of the building bearing No. 4A and 4B of Ward VI is not at all correct or sustainable, primarily for the reason that the building was constructed as early as in the year 1996, when the charging provision had not taken its breath. 2. The petitioner, along with two others who were having joint ownership over the property in question, had constructed a building utilizing their funds and the petitioner's share accounted only to an extent of 242.35 m2, out of which a small portion constitutes the area for commercial purpose; whereas the remaining portion forms the residential portion. After completion of the building, the petitioner and other co-owners effected partition of the properties on 10-12-1996 as evident from Ext.P1 deed of partition and ever since thereafter the property was W.P.(C) No. 18699 OF 2003 2 being enjoyed by the petitioner as well as the other two persons separately, to the exclusion of one another. 3. The assessment of the building tax was completed by the second respondent only on 12-3-2001 as evident from Ext.R2 (b).The building has been shown as a residential one having a plinth area of 302.92 M2 and a sum of Rs.6600/- was shown as the tax liability, which, according to the petitioner, though was not correct or sustainable, was satisfied by him to avoid any litigation, also taking into account that, it was only a 'one time affair' and further that the scope of challenge with regard to the disputed area would only be negligible. The petitioner got aggrieved only subsequently, when steps were taken by the second respondent for assessment of 'luxury tax' in tune with the mandate under section 5A of Kerala Building Tax Act, which was brought out in the meanwhile. The main contention of the petitioner is that the building, having been constructed as early as in 1996, it was not assessable for 'luxury tax' as Section 5A came into operation only w.e.f. 1-4-1999 . Pursuant to the notice received from the second respondent, the petitioner who was W.P.(C) No. 18699 OF 2003 3 stated as working in New York caused to file Ext.P6 objection through his representative, stating that no liability could be fixed upon the petitioner; particularly since the building did not satisfy the minimum area stipulated, so as to have come within the purview of assessment. It is the contention of the petitioner that without any regard to Ext.P6 objection, P7 order was passed by the second respondent holding that the building belonging to the petitioner was very much liable to be taxed, having a plinth area of more than 278.7m2 and further that the construction of the building was completed after 1-4-1999. The petitioner approached this Court challenging the sustainability of Ext.P7 order, particularly when coercive proceedings were initiated against him, which however was intercepted by this Court by passing an interim order. 4. The respondents have filed a counter affidavit stating that the petitioner was given several opportunities to put forth his version, but he did not choose to appear before the second respondent, despite service of notice in this regard. That apart, it is also pointed out that the petitioner had filed Ext. R2(a) W.P.(C) No. 18699 OF 2003 4 'return' before the second respondent, wherein the date of completion of the building was shown as 'July, 2000' and the date of occupation was shown as '20.07. 2000'. It was pursuant to the above admitted fact that the second respondent chose to pass Ext.P7 order imposing the liability on the petitioner, submits the learned Government Pleader. 5. The case of the petitioner is that Ext.R2(a) was never submitted by the petitioner ; that there was absolutely no need, necessity or occasion for the petitioner to have submitted such a 'return' years after completion of construction of the building as evident from Ext.P1 partition deed and further that the signature in Ext.R2(a) was not the signature of the representative/agent of the petitioner, which is very much discernible from a mere comparison of the said document with Ext.P1 partition deed, (which was also got executed through his representative by virtue of power of attorney in this regard). The learned Government Pleader referring to Ext.R2(b) submits that the 'plinth area' of the building shown therein as 302.92 Sq.M having not been chosen to be disputed by the petitioner and W.P.(C) No. 18699 OF 2003 5 since he had accepted the liability and remitted the due amount, it is no more open to the petitioner to challenge the said order . This being the position, the case put forth by the petitioner stating that the plinth area of the building is only 242.35 Sq.M cannot be accepted at all, even assuming that the said contention is very much correct and acceptable, submits the learned Government Pleader. 6. The important aspect to be looked into is whether the building was constructed prior to the 'appointed day' or not. Ext.P1 'Partition Deed' produced before this Court shows that it was after constructing the building in the concerned property that the partition was effected among the co-owners. (A schedule- page 7) The petitioner also placed reliance on Ext.P2 'Land Tax Building Assessment Register' of the concerned Panchayat, wherein the the petitioner's building and its tax liability have been given with reference to the date '31.07.1976'. Further reliance is placed on Ext.P3 'Telephone bill' issued by the Department of Telecommunication in the address of the petitioner showing the exact building number in question. This W.P.(C) No. 18699 OF 2003 6 Telephone bill is dated 01.12.1998. Similarly, reference is also made to Ext.P4 'Premises Meter Card' issued by the KSEB showing the consumer number and the name of the consumer, though the building number is not mentioned therein. Ext. P5 is the 'Receipt' issued from the concerned Grama Panchayath in respect of the remittance of property tax and such other dues. This document is dated 30-9-1996 . From the above, it is clear that the bulding in question was constucted by the petitioner much prior to the appointed day, ie, prior to 1-4-1999. This being the position, no tax liability under section 5A of the Act could have been imposed on the petitioner and hence the assessment made by the second respondent vide Ext.P7 cannot stand in the eye of law; which accordingly is set aside. The Writ Petition is allowed. No cost . P.R. RAMACHANDRA MENON, JUDGE. lk W.P.(C) No. 18699 OF 2003 7 P.R. RAMACHANDRA MENON, J. ................................................... W.P.(C) No. 18699 OF 2003 ................................................... Dated this the 12th June, 2009 J U D G M E N T