IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 14872 of 2006() ------------------------- PETITIONER: --------------- ANNAMMA PHILIP, W/O. THOMAS PHILIP, KOLANJIKOMBIL, SOUTH VAZHAKKULAM,ERNAKULAM DIST. BY ADV. SRI.V.B.HARI NARAYANAN RESPONDENTS: --------------- 1. THE TAHSILDAR, KUNNATHUNADU. 2. THE DISTRICT COLLECTOR, ERNAKULAM. GOVERNMENT PLEADER SRI. K.P. PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 14872/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE DEMAND NOTICE DATED 29.6.1985. EXT.P2 A TRUE COPY OF THE TAX PAID RECEIPT. EXT.P3 A TRUE COPY OF PROCEEDINGS DATED 22.2.2001 ISSUED BY 1ST RESPONDENT. EXT.P4 A TRUE COPY OF NOTICE. EXT.P5 A TRUE COPY OF PROCEDINGS OF RDO DATED 14.8.1985. EXT.P6 A TRUE COPY OF REVISION PETITION FILED BEFORE 2ND RESPOSNDENT. EXT.P7 A TRUE COPY OF PROCEEDINGS DATED 12.12.2005 OF 2ND RESPODENT. EXT.P8 A TRUE COPY OF NOICE DATED 27.12.2005. EXT.P9 A TRUE COPY OF ORDER DATED 19.4.2006 OF 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMACHANDRA MENON, J. = = = = = = = = == = = = == = = = = = = W.P.(C) No. 14872 OF 2006 = = = = = = = = == = = = = = = = = = = = = DATED THIS, THE 17TH DAY OF SEPTEMBER, 2010. J U D G M E N T Petitioner is challenging the steps finalised by the assessing authority, appellate authority and revisional authority with regard to the fixation of liability under Section 5 and 5A of the Kerala Building Tax Act. The case of the petitioner is that a building was constructed way back in 1985 and pursuant to fixation of liability to pay the building tax under Section 5 as borne by Ext.P1, the same was satisfied by the petitioner as per Ext.P2 receipt. In 1997, petitioner effected some temporary improvements by putting up aluminum roof to the terrace of the building as well as to the garage, which was taken note of by the first respondent who issued Ext.P3, refixing the liability under Section 5, reckoning the entire area of the building including that is covered by Ex.P1/P2 and also the additional temporary construction, thus fixing the total plinth area under Section 2(k) of the Act to be 302.11 m2 and demanded a sum of Rs. 6,000/- to be paid on or before 15.3.2001. 2. Met with such situation, petitioner preferred statutory appeal before the Revenue Divisional Officer, wherein Ext.P4 notice of hearing WP(C) 14872 OF 2006 2 was issued on 23.5.2005. Later, the appeal was dismissed by the appellate authority as per Ext.P5 order holding that the appeal preferred by the petitioner was 'time barred' and not in the prescribed form. Even though the petitioner challenged the same by filing a revision under Section 13 before the second respondent, the same was not successful as borne by Ext.P7. 3. On culmination of the proceedings as above, the first respondent issued Ext.P8 notice referring to the sequence of events followed by issuance of Ext.P9 order, with regard to the fixation of liability under Section 5A in respect of 'luxury tax' demanding to satisfy a sum of Rs. 16,000/- in respect of the assessment years 1999-2000 to 2006-2007 and to continue to effect payment, holding that the completion of the construction of the building was only in the year 1999, ie. after the appointed date. 4. Learned counsel for the petitioner submits that the finding and reasoning given by the concerned authorities are quite contrary to the actual facts and figures and the relevant provisions of law. Learned counsel submits that the additional construction effected by the petitioner was only by way of temporary measure, to save the building from Sun and Rains and without any side walls and as such, it is not liable to be reckoned as part of the plinth area, falling under Section 2(k of the Act. Learned WP(C) 14872 OF 2006 3 counsel further submits that the observation that the appeal preferred by the petitioner was time barred as noted in Ext.P5 is also not correct as the proceeding dated 16.1.2001 preferred by the petitioner has been taken note of in Ext.P4 notice itself and since the impugned order passed by the assessing authority (Ext.P3) is dated 22.2.2001, the appeal preferred by the petitioner on 16.3.2001 is perfectly within time and on this score alone, Ext.P5 order passed by the appellate authority and Ext.P7 order passed by the revisional authority are liable to be set aside. 5. The learned Government Pleader appearing for the respondents, submits that the proceeding referred to in Ext.P4 is only an application and that it was not in the proper form as observed in Ext.P5 itself. But this Court does not find it fit and proper to non suit the petitioner on this ground, for the obvious reason that, if the appeal preferred by the petitioner was not in the proper form, it was for the office of the appellate authority to have it returned pointing out the defect, enabling the appellant to have the defect rectified and to be represented, which course has not been admittedly pursued in the present case. It is also a matter to be looked into, whether the contention of the petitioner that the construction was effected much prior to the appointed day, ie. 1.4.1998, is correct or not and if it is so, no liability under Section 5A towards 'luxury tax' is attracted. WP(C) 14872 OF 2006 4 6. Yet another question that may arise for consideration is as to when the additional construction stated as effected by the petitioner was made and if it is after the appointed day, whether the plinth area of the entire building could be reckoned for fixing the liability under Section 5A or whether it has to be considered with reference to the actual plinth area of the additional construction effected after the appointed day. Learned Government Pleader submits that this issue is being heard by a Full Bench of this Court even today in the matters pending in W.A. 1759/2009 and W.P.(C) 34723 of 2004 and some other connected case. In the above facts and circumstances, this Court finds that the matter requires to be reconsidered by the assessing authority ie. the first respondent, with specific reference to the facts and figures and the relevant provisions of law. 7. Accordingly, Exts. P3, P5, P7 and P9 orders are set aside and the first respondent is directed to reconsider the matter and finalise the proceedings, both in respect of the liability under 'Section 5' as well as under 'Section 5A' of the Act, of course, after giving an opportunity of being heard to the petitioner. This shall be done within a period of three months from the date of receipt of a copy of this judgment. It is for the petitioner to bring it to the notice of the first respondent as to the outcome of the decision to be rendered by the Full Bench in the concerned cases as mentioned WP(C) 14872 OF 2006 5 above. Petitioner shall also produce a copy of this judgment before the first respondent for taking further steps. The writ petition is allowed ; no cost. P.R. RAMACHANDRA MENON, (JUDGE) KNC/-