IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 1190 of 2011(W) ------------------------ PETITIONER : -------------------- ALIYAS MATHEW, AGED 48, S/O.MATHEW MANNALIKKUDY HOUSE, OLD MUVATTUPUZHA ROAD VATTAKKATTUPADY, PERUMBAVOOR, KUNNATHUNADU TALUK. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP BY PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA- 686 661. 3. TAHSILDAR, KUNNATHUNADU TALUK PERUMBAVOOR 683 542. R1 TO R3 BY SR. GOVT. PLEADER SRI. MATHEW GEORGE VADEKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1190 of 2011 ------------------------------------------- Dated this the 19th day of January, 2011 J U D G M E N T ---------------------- The petitioner is aggrieved by Ext.P1 order of assessment through which Luxury Tax under Section 5A of the Kerala Building Tax Act, 1975 was imposed, reckoning the plinth area of the building in question as 279.47 Sq.M. Contention of the petitioner is that the plinth area was calculated on an erroneous basis adding the area covered by car porch which was liable to be exempted as per the proviso to Section 6 of the Act. The petitioner also relies on Ext.P2 Circular issued by the Government giving instructions to the assessing authorities to exempt the area of car porches while completing assessment. 2. However, aggrieved by Ext.P1 the petitioner had filed statutory appeal before the 2nd respondent, which was rejected as per Ext.P4 observing that the appeal was filed long after the period of limitation prescribed and that the authority is not having power to condone delay beyond the period of six months, as provided under Section 11(3) of the Act. Under such circumstances the petitioner is challenging Ext.P4. 3. Considering the reasons mentioned in Ext.P4 for W.P.(C).1190/11 -2- rejection of the appeal, I do not find any illegality or impropriety in the said order. Going by Section 11(3) it is evident that there is an express prohibition for entertaining any appeal which is filed beyond a period of six months. Therefore I am of the view that rejection of the appeal was legal and justified. 4. However, it is noticed that the petitioner has got a valid contention regarding assessment of Luxury Tax under Section 5A. According to the petitioner, if the area covered by car porch is excluded, the total area of the building will come only less than 278.70 Sq.M., which is the limit prescribed under Section 5A. 5. It is noticed that assessment of Luxury Tax under Section 5A is made on an year to year basis. Merely because the petitioner had remitted tax with respect to any particular year he could not be precluded from challenging any further assessment on the basis of any valid contentions. As per dictum laid by this court in the decision reported in Mohammed Sadik Vs. Tahsildar (2006 (3) KLT 271) the assessee can be permitted to challenge assessment of Luxury Tax under Section 5A at any point. Therefore I am of the view that the petitioner is at liberty to raise the dispute regarding continued assessment of Luxury Tax under Section 5A. 6. Therefore the writ petition is disposed of reserving W.P.(C).1190/11 -3- liberty to the petitioner to raise dispute before the 3rd respondent regarding the liability for payment of Luxury Tax under Section 5A. If any such dispute is raised within a period of two weeks from the date of receipt of a copy of thus judgment, the 3rd respondent shall consider the same and take a decision after affording an opportunity of hearing to the petitioner. 7. Collection and recovery of Luxury Tax under Section 5A from the current year onwards, shall be made only subject to such decision to be taken by the 3rd respondent as directed above. Needless to say that the petitioner will be liable for payment of Luxury Tax if any due till the current year. C.K.ABDUL REHIM, JUDGE. okb