IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 27496 of 2006(W) ------------------------------------ PETITIONER : ---------------- SUMA MATHEW, W/O. MATHEW, POLAKANDATHIL, VARANAM P.O., THANNEERMUKKAM NORTH VILLAGE, ALAPPUZHA. BY ADV. SRI.C.K.SAJEEV RESPONDENTS : ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, TALUK OFFICE, CHERTHALA. 3. DISTRICT COLLECTOR, ALAPPUZHA. 4. THE VILLAGE OFFICER, THANNEERMUKKAM NORTH VILLAGE, ALAPPUZHA. GOVERNMENT PLEADER FOR TAXES SRI.K.P.PRADEEP R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27496 of 2006(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE CERTIFICATE AND LINE SKETCH ISSUED BY THE ASST.ENGINEER, PWD BUILDINGS DIVISION, CHERTHALA EXT.P2: TRUE COPY OF THE ORDER NO. B T 838/04 DATED 23.02.2005 ISSUED BY THE 1ST RESPONDENT EXT.P3: TRUE COPY OF THE ORDER NO. L T 4/2005 DATED 23.02.2005 ISSUED BY THE 2ND RESPONDENT EXT.P4: TRUE COPY OF APPEAL PETITION DATED 05.12.2005 FILED BEFORE THE R.D.O., ALAPPUZHA BY THE PETITIONER EXT.P5: TRUE COPY OF THE REVISION PETITION DATED 15.12.2005 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXT.P6: TRUE COPY OF THE ORDER NO.KDIS 5610/06/B3 DATED 10.07.2006 OF THE 3RD RESPONDENT -TRUE COPY- P.A. TO JUDGE pac C.K.ABDUL REHIM, J. --------------------------------------- W.P.(C) No.27496 OF 2006 --------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT The challenge in the writ petition is against Exts.P2 and P3, assessment of building tax and luxury tax. According to the petitioner, against Exts.P2 and P3, she filed appeal before the third respondent, the District Collector. But the District Collector informed her, through order No.46462/05 B3 dated 24.11.2005, that the appropriate appellate authority is the Revenue Divisional Officer. The petitioner thereafter filed Ext.P4 petition before the Revenue Divisional Officer, on 05.12.2005. But, the Revenue Divisional Officer rejected the appeal as time barred. Hence she filed a further petition, Ext.P5, before the District Collector. The District Collector treated the same as a revision, and disposed it through Ext.P6 order. It is held by the District Collector that the petitioner had not filed appeal before the appellate authority within the time stipulated, and she has not filed any petition for condonation of delay. Further, it is observed that there is no proper explanation for delay in filing the revision petition also. W.P.(C) No.27496 of 2006 2 Therefore, the revision petition was not entertained. 2. As per Section 11(3) of the Kerala Building Tax Act, 1975 (for short “the Act”) an appeal against the assessment need be filed within 30 days from the date of service of the notice of demand. The appellate authority is empowered to condone delay upto a period six months from the date of service of the notice. In the case at hand, the petitioner has not filed any appeal against Exts.P2 and P3 assessment before the appellate authority within the time prescribed. She has not filed any petition for condonation of delay also. Even if she had filed any such petition for condonation of delay, the appellate authority would have only rejected the same because the appeal is filed beyond a period of six months. Eventhough the order rejecting the appeal by the Revenue Divisional Officer, is not produced in this writ petition, it is evident from Ext.P6 order of the District Collector that the rejection of the appeal was on the ground of delay. The District Collector also found that the delay caused in filing the revision petition is also not properly explained. In view of the above facts, I do not find any reason to interfere with Ext.P6 order issued by the District W.P.(C) No.27496 of 2006 3 Collector. Accordingly, I am not inclined to interfere with the assessments issued under Exts.P2 and P3. 3. Mr.C.K.Sajeev, learned counsel for the petitioner had vehemently contended that the plinth area of the building mentioned in Exts.P2 and P3 are totally incorrect. According to him, the plinth area is calculated adding area of the terrace portion also, because there is a temporary roofing put on the terrace of the building, which is put up without walls, in order to prevent leakage and heat. This court in the decision Padmanabhan Vs. State of Kerala (2009 (1) KLT 295) held that a roof covered on the top of the terrace, whether it made by metal, fibre, or tile, in order to cover the concrete building, could not be included in the plinth area for the purpose of assessment of building tax. The specific contention of the petitioner is that, if the area of the roof top (terrace) is excluded from the total plinth area, she may not be liable for payment of luxury tax under Section 5A of the Act. Being a physical statue the assessment of luxury tax under Section 5A can only be construed as an assessment made on year to year basis. The petitioner is always at liberty to object such W.P.(C) No.27496 of 2006 4 assessment on the ground that the plinth area is below assessible limit. Therefore I find no impediment to the petitioner to object the assessment of luxury tax under Section 5A, with respect to any subsequent years of assessment, after Ext.P3, on the above said ground. The dismissal of this writ petition and confirmation of Ext.P3 assessment will not preclude the petitioner from raising such contention. But the petitioner expresses an apprehension that the assessing authority may issue assessment orders for the subsequent years, without affording any opportunity to the petitioner to raise such contention. 4. Under the above mentioned circumstances, the second respondent is hereby directed that any assessment of luxury tax for the years subsequent to the period covered under Ext.P3 should be made only after affording the petitioner an opportunity to file objections. The petitioner should also be afforded with a reasonable opportunity of hearing before making any such sment. The second respondent shall consider such objections, if raised and shall take a decision on proper adjudication of such objections in W.P.(C) No.27496 of 2006 5 view of the observations made above. 5. The counsel for the petitioner makes an appeal for indulgence of this court for allowing a reasonable time for effecting payment of the amounts covered under Exts.P2 and P3. Having considered the fact that this writ petition was pending since the year 2006 onwards and that this court has granted an interim stay on 19.10.2006, I am inclined to grant a reasonable time for payment of the amounts. Hence the respondents are directed to keep in abeyance all recovery steps for realization of the amounts covered under Exts.P2 and P3 for a period of two months from today, facilitating the petitioner to make payment of amounts. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE pac