IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(C).No. 29278 of 2009(D) -------------------------- PETITIONER(S): --------------- T.SATHYABABU,S/O.THANU,AGED 50,RESIDING AT SMRITHILAYA, AYIROOR DESOM, AYIROOR VILLAGE, VARKALA,REPRESENTED BY POWER OF ATTORNEY HOLDER PRABHAKARAN, S/O.RAGHAVAN, AGED 65,RESIDING AT SHINY NIVAS, AYIROOR P.O.VARKALA, TRIVANDRUM DISTRICT. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): --------------- 1. THE TAHSILDAR, CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT. 2. REVENUE DIVISION OFFICER/SUB COLLECTOR, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, THIRUVANANTHAPURAM 4. THE SECRETARY REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT. BY GOVT. PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.29278 of 2009-D ---------------------------------------- Dated this the 2nd day of June, 2011. J U D G M E N T The petitioner is challenging assessment of luxury tax made against him under Section 5A of the Kerala Building Tax Act, 1975. Through Ext.P1 order, building belonging to the petitioner was assessed for the purpose of imposing luxury tax for the years 1999-2000 to 2002-03, computing the plinth area as 291 Sq.M. Contention of the petitioner is that, total plinth area of the building is 220 Sq.M, only and the area was computed on an erroneous manner. It is evident that the petitioner made various representations to different authorities seeking to rectify the mistake. Ext.P5 petition submitted in this regard to the 2nd respondent was rejected through Ext.P6 intimation, requiring the petitioner to file proper appeal in the from prescribed. Thereafter the petitioner submitted Ext.P7 appeal. But the appeal was rejected through Ext.P8 order for the reason that the same was filed after expiry of the limitation prescribed. It is W.P(C) No.29278 of 2009-D 2 evident that through Ext.P9 recovery steps were initiated to realise the amounts of luxury tax which is due for the subsequent periods from 2003-04 to 2008-09. 2. The petitioner had produced Ext.P9(a) certificate issued from the Grama Panchayat concerned to the effect that the plinth area of the building in question was found to be 220.91 Sq.M, on the basis of an inspection conducted. The petitioner is assailing the order of assessment as well as the order issued by the 2nd respondent through which the appeal is rejected. It is noticed that Ext.P1 order of assessment was issued as early as in March 2003. Going by the provisions contained under Section 11(3) of the Kerala Building Tax Act, the period of limitation prescribed for filing appeal against the assessment is 30 days from the date of service of notice of demand. Eventhough power is conferred for condoning delay in filing the appeal, restriction is imposed through the above said provisions in admitting any appeal after the period of six months from the date of service of notice of demand. Under such W.P(C) No.29278 of 2009-D 3 circumstances, I find that the rejection of the appeal in question, which was filed after a long lapse of time, is legal and justified. Since the petitioner has not challenged the assessment by resorting to any statutory remedy within any reasonable time, it is not justified on the part of this Court to interdict with the proceedings impugned in this writ petition. 3. However, it is noticed that the assessment of luxury tax under Section 5A is made on an year to year basis. Merely because the petitioner had remitted tax due with respect to any particular year, he could not be precluded from raising any challenge against the assessment proposed for the subsequent years. This Court in the judgment in Mohamad Sadik V. Tahsildar (2006 (3) KLT 271) held that even if the levy is unchallenged for any previous year, an assessee can challenge levy of luxury tax for the subsequent years, and in such case 'resjudicata' will not apply. In view of the dictum laid by this Court as above, I am of the view that the petitioner can be given W.P(C) No.29278 of 2009-D 4 liberty to object the assessment of luxury tax for any further years. The petitioner is given liberty to file objections in this regard before the 1st respondent within a period of two weeks from the date of receipt of a copy of this judgment. The 1st respondent is directed to consider such objections by conducting measurement of the building on physical verification with proper notice to the petitioner. On the basis of such verification and measurement, the question regarding liability for payment of luxury tax shall be decided afresh, before proceeding with assessment or collection of luxury tax under Section 5A for any subsequent periods. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM JUDGE ab