IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 31310 of 2010(K) --------------------------------------- PETITIONER: ------------------- M.A.HASHIM, AGED ABOUT 58 YEARS, S/O. N.K.MUHAMMED, CHATHAMVELIL HOUSE, ANK. ROAD, THURAVOOR, KUTHIATHODE VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.R.O.MUHAMED SHEMEEM, SMT.NASEEHA BEEGUM P.S. RESPONDENTS: ------------------------ 1. DISTRICT COLLECTOR, THE BUILDING TAX APPELLATE AUTHORITY, COLLECTORATE, ALAPPUZHA-688 001. 2. THE REVENUE DIVISIONAL OFFICER, REVENEU DIVISIONAL OFFICE, ALAPPUZHA-688 001. 3. THE THAHASILDAR, CHERTHALA TALUK CHERTHALA, ALAPPUZHA DISTRICT-688 524. R1 TO R3 BY GOVT. PLEADER SRI. BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 31310 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 13th day of October, 2010 JUDGMENT In this writ petition the petitioner is challenging Ext.P12 order of the 1st respondent, issued in exercise of revisional power vested under section 13 of the Kerala Buildings Tax Act. 2. The petitioner is working abroad. He re- constructed the family house by demolishing the old house. The construction was completed during 1992-'93 and the local authority had assigned building number and assessed property tax to the newly constructed house from the financial year 1992-'93 onwards, as evidenced from Exts.P3 and P4 certificates. For the purpose of assessment of Building Tax, the petitioner submitted return through one of his relatives, when he was abroad. By a mistake the date of completion of construction was mentioned as July, 2001. Through Ext.P1, the assessment of Building Tax was completed and the petitioner had paid the amount of tax W.P.(C) No. 31310/2010 2 assessed. The petitioner was also imposed with Luxury Tax under section 5A of the Act, and the petitioner had paid Luxury Tax due till the year 2006. 3. When the petitioner returned from abroad, he realized that the Luxury Tax is being collected mistakenly, since the construction was completed in the year 1992-'93. Therefore, he submitted a request to the 3rd respondent for rectification of the mistake. But the request was rejected through Ext.P2 order holding that the petitioner had already remitted Luxury Tax and the date of completion mentioned in the return filed is 7/2001. It is further observed that the certificate produced by the petitioner is only a copy and not attested by any authority. 4. Aggrieved by Ext.P2, the petitioner preferred appeal before the 2nd respondent. The appellate authority had called for a report from the 3rd respondent. The 3rd respondent submitted a report to the effect that it is evident that petitioner was remitting property tax to the Panchayat from the year 1992-'93 onwards and no additions or W.P.(C) No. 31310/2010 3 alteration was made thereafter. Therefore, the 3rd respondent recommended that the assessment of Luxury Tax can be set aside. Copy of the said report is produced as Ext.P5. The extract of the Assessment Register of the Panchayat was also produced before the appellate authority ( Ext.P7). But the appeal was dismissed on the ground that the petitioner had shown the date of completion of construction as 7/2001, in the return filed. Ext.P8 is the appellate order. 5. Against order of the appellate authority the petitioner preferred statutory revision before the first respondent. But the revision petition was dismissed through Ext.P12 stating that, the petitioner had not preferred the appeal in the prescribed form and that the appeal was preferred long after the period of limitation stipulated under Section 11(3). It is held that the appeal petition itself was defective and not worthy of consideration. In this writ petition the petitioner is challenging validity of Ext.P12. W.P.(C) No. 31310/2010 4 6. While considering sustainability of Ext.P12, I am of the considered opinion that the revisional authority went wrong in dismissing the Revision Petition alleging technicalities and defects with respect to filing of the appeal, which had already culminated in an order passed by the appellate authority based on merits of the issue. The question whether there was any technical defects in the appeal, could not be evaluated by a revisional authority, when the appellate authority had already disposed of the appeal on merits . The revisional authority was considering only the challenges regarding legality, correctness, or propriety of the order passed by the appellate authority. There is no case that the 1st respondent was exercising suo motu powers vested under Section 13 of the Act. Further, even such power can be exercised only subject to compliance of requirements under the proviso to Section 13 (1). 7. Therefore, dismissal of the revision petition alleging defects in filing the appeal, is totally unsustainable W.P.(C) No. 31310/2010 5 and the revisional authority is bound to consider the matter on the merits of the issue. 8. It is settled law by this time that the assessment of Luxury Tax under Section 5A is a recurring assessment on an year to year basis. Therefore, merely because the assessee had not challenged the assessment with respect to any previous year, he could not be precluded from challenging such assessment with respect to any subsequent year. Therefore, the authorities were not correct and justified in rejecting the claim of the petitioner, on the basis that he had already remitted Luxury Tax till the year 2006. 9. The question to be decided in the case at hand is as to whether the petitioner had completed construction of the building prior to 1-4-1999. It is true that the petitioner had conceded in the return filed that the date of completion of construction was 7/2001. But the specific case of the petitioner is that such statement was a mistake and the return was filed only by somebody authorised by the W.P.(C) No. 31310/2010 6 petitioner, on his absence. On the other hand, the petitioner places reliance on Exts.P3 and P4 certificates issued from the Grama Panchayat, as well as the extract of the Assessment Register of the Panchayat, Ext.P7. Therefore, the question to be decided is as to whether the construction was actually completed after 1-4-1999. The authorities were bound to consider the said issue based on the available evidence, or on the basis of further verifications and evidences to be collected. Since such an exercise was not seen done by any of the authorities, I am of the considered opinion that the matter need be remanded to the revisional authority for a fresh disposal. 10. Therefore, the writ petition is allowed and Ext.P12 order is hereby quashed. The 1st respondent is directed to restore the revision petition back to its files and to dispose of the same afresh, after affording a reasonable opportunity to the petitioner, taking note of the observations contained in this judgment. 11. Needless to say that the revisional authority will W.P.(C) No. 31310/2010 7 be at liberty to conduct necessary verifications and enquiries through any competent authority and to permit the petitioner to adduce any fresh evidence. 12. A fresh decision in this regard shall be taken by the 1st respondent as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Collection and recovery of Luxury Tax from the petitioner, under Section 5A, shall be kept in abeyance till a fresh decision is taken by the 1st respondent, as directed above. C. K. ABDUL REHIM, JUDGE. mn.