IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 34575 of 2004(N) -------------------------- PETITIONER: ------------ BENNY. P. SKARIAH, PARAYIL HOUSE, MYLAPRA VILLAGE, MEKKOZHOOR MURI. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, ADOOR. (SUB COLLECTOR, ADOOR). 3. TAHSILDAR, KOZHENCHERRY TALUK OFFICE PATHANAMTHITTA. 4. VILLAGE OFFICER, MYLAPRA. 5. MYLAPRA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MYLAPRA TOWN P.O., PATHANAMTHITTA. BY ADV. SRI.BABU CHERUKARA FOR R5 G.P. SRI.TEK CHAND FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF CERTIFICATE DT.8.8.2003 ISSUED BY THE SECRETARY, MYLAPRA GRAMA PANCHAYAT. P2: COPY OF PROCEEDINGS OF R3. P3: COPY OF REPRESENTATION SUBMITTED BY PETITIONER TO R3 DT.8.8.2003. P4: .DO. R2 DT.2.1.2004. P5: COPY OF THE HEARING NOTE. P6: COPY OF LIST OF WITNESS. P7: COPY OF PROCEEDINGS OF R2 DT.19.5.2004. P8: COPY OF RELEVANT PAGES OF PETITIONER'S PASSPORT. RESPONDENT'S EXHIBITS: R3(a): FORM NO.II RETURN FILED BY THE PETITIONER. R5(a): TRUE PHOTOCOPY OF APPLICATION SUBMITTED BY PETITIONER WHEREIN A REPORT IS OBTAINED DT.5.2.99. R5(b): TRUE PHOTOCOPY OF RELEVANT PAGE OF THE MINUTES BOOK DT.23.2.99 OF MYLAPRA GRAMA PANCHAYAT BEARING PAGE NO.120. R5(c): TRUE PHOTOCOPY OF RELEVANT PAGE NO.81 OF THE PANCHAYAT BUILDING TAX ASSESSMENT REGISTER WITH SERIAL NO.424. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.34575 of 2004 .................................................................... Dated this the 27th day of June, 2008. JUDGMENT The petitioner is challenging demand of luxury tax in respect of a residential building. Admittedly, the plinth area is above the limit that attracts luxury tax under Section 5A of the Kerala Building Tax Act. However, dispute pertains to date of completion of construction. Government Pleader pointed out that in the return, petitioner declared the date of completion of construction as 5.6.1999 and therefore, liability is automatic. However, petitioner submitted that his wife committed a mistake in regard to the date of completion of construction of the building entered in the return and the same should not lead to liability. The petitioner was stated to be employed outside India during the period return was filed. If petitioner's wife committed an inadvertent mistake, that should not lead to liability for the petitioner. However, documents produced by the petitioner from the Panchayat cannot be the sole basis for determining the date of completion of construction of the building because it was noticed by this court in many cases that many Panchayats are indifferently issuing certificates containing wrong facts. Since the building constructed is used 2 as a residence, the first monthly electricity bill issued after giving connection will be conclusive evidence as to when the building was occupied. No one in the modern era starts residing in a house without electric connection. Moreover, there may be secondary evidence such as proof of house warming ceremony, settlement of accounts with the contractor reflected by Bank accounts etc. The W.P. is therefore disposed of granting one more opportunity to the petitioner to produce records pertaining to grant of electric connection, first bill raised, water connection, if any taken and other evidence pertaining to date of completion of construction of the building, within a period of six weeks from now. The Tahsildar is directed to reconsider the matter and if construction of building is completed prior to 1.4.1999, he will grant exemption for the petitioner through a detailed order to be passed by him. The third respondent is directed to take a final decision within a period of three months from now. Recovery proceedings will continue to remain stayed for three months from now and thereafter recovery will be based on fresh orders to be issued by the Tahsildar. The petitioner will produce copy of this judgment and documents for compliance. C.N.RAMACHANDRAN NAIR Judge pms