IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 33772 of 2009(N) ------------------------------- PETITIONER: ------------- JAMES GEORGE, MALIAKEL HOSE, NEENDOOR, ONAMTHURUTH VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.PAULY MATHEW MURICKEN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, KOTTAYAM. 3. THAHSILDAR, KOTTAYAM. 4. VILLAGE OFFICER, ONAMTHURUTH VILLAGE. GOVERNMENT PLEADER SRI. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. --------------------------------------------------- W.P.(C) No. 33772 OF 2009 ---------------------------------------------------- Dated this the 24th day of November, 2009 JUDGMENT 1. Petitioner has approached this Court aggrieved by Ext.P5 order of the second respondent rejecting Ext.P4 appeal filed by him. The residential building of the petitioner was assessed under the provisions of the Kerala Building Tax Act, 1975, treating its plinth area as 292.11 sq. meters. According to the petitioner, the plinth area was calculated including the area of the car porch. Otherwise the plinth area will be only 264.21 sq. meters. It is pointed out that a Division Bench of this Court in Subhashchandrababu Vs. State of Kerala, (2006 (2) KLT 189) held that the area of the garage need not to reckoned for the purpose of computing plinth area for assessment of Building Tax. In view of the above decision, the petitioner had submitted Ext.P4. The second respondent observed that as per provisions contained in the statute, delay in filing the appeal cannot be condoned beyond a period of six months, and W.P.(C).NO.33772/2009 2 therefore rejected the appeal. 2. A subsequent clarification of the legal position through a judgment of this Court will not entitle the petitioner to file any appeal against an assessment, after expiry of the period of limitation or after expiry of the period up to which the delay can be condoned by the appellate authority. Therefore, I find no fault with Ext.P5 order of the second respondent. Hence the writ petition is liable to be dismissed. 3. However, the petitioner contended that he is assessed with luxury tax under Section 5A of the Act, on the premise that this building is having plinth area of more than 278.7 sq. meters. Contention is that, if the area of the garage is excluded, the petitioner is not liable for payment of luxury tax under 5A. It is evident from Ext.P6 receipt that the petitioner had already remitted luxury tax up to the W.P.(C).NO.33772/2009 3 year 2007-2008. In the decision, Mohammed Sadique Vs. Tahsildar, reported in 2006 (3) KLT 371, a learned judge of this Court observed that even if the levy of luxury tax under Section 5A with respect to the previous years are unchallenged, an assessee can challenge the same for the subsequent years, and res judicata will not apply in such cases. Liability of Luxury Tax is a recurring liability from year to year. So even assuming that, the petitioner suffered payment of luxury tax for the earlier years, he is entitled to challenge demand with respect to the subsequent years, by invoking remedy by way of appeal against such demand, on the ground that such levy is not sustainable. 4. Under the above circumstances, I am of the opinion that inspite of dismissal of this writ petition holding Ext.P5 as valid, the petitioner can be given liberty to file appeal against the demand if any made, for payment of luxury tax under Section 5A for any subsequent years. The limitation W.P.(C).NO.33772/2009 4 for filing appeal in such case shall be computed from the date of any such demand, treating the same as an assessment of luxury tax under 5A, pertaining to the year/ years concerned. Therefore, it is made clear that, if any appeal is filed against any demand or recovery pertaining to luxury tax for the subsequent years, the second respondent shall entertain and consider such appeal without insisting for production of specific order of assessment. The writ petition is disposed of with the above observations. C.K.ABDUL REHIM, JUDGE SS/.