IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1423 of 2009()
1. SASIDHARAN
... Petitioner
Vs
1. THE DISTRICT COLLECTOR
... Respondent
2. THE R.D.O.CHENGANNUR
3. THE TAHSILDAR
4. THE SECRETARY
For Petitioner :SRI.R.REJI
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :06/07/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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W.A. NO. 1423 OF 2009
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DATED THIS, THE 6TH DAY OF JULY, 2009.
J U D G M E N T
Raman, J.
Appellant is the writ petitioner in W.P.(C) 10309/2006. He was
assessed to Luxury Tax under Section 5a of the Kerala Building Tax Act.
for the year 2000-2001 to 2002-2003. Though he paid the building tax, he
disputed his liability to pay luxury tax under Section 5A and challenged the
assessment; but was not successful. Finally, he challenged the same in
the writ petition. The learned Single Judge, followed the decision in
Simon vs. Tahsildar (2008(3) KLT 826) wherein it is held that if the plinth
area is increased by major addition or extension, building tax shall be paid
for the total plinth area of the building including that of the new extension
or major improvement or major repair. Hence it was held that petitioner
having effected major addition after 1.4.1999, the crucial date for attracting
the provisions under Section 5A, is disentitled from seeking any exemption
from payment of luxury tax. Aggrieved thereby, he has preferred this
appeal.
W.A. NO. 1423/2009 :2:
2. We have heard the parties. The decision reported in Simon’s case
(2008(3) KLT 826) was on the question of constitutionality of the provisios
contained in Section 5(4) of the Kerala Building Tax Act. The Division
Bench held that such provision is constitutionally valid. The contention as
to whether assessment in respect of a building can be reopened based on
subsequent assessment was considered and held that adoption of plinth area
as the basis or mode for assessing the liability is legally valid. Further, it
has to be noticed that when there is a change in the plinth area by the
subsequent construction or extension as the case may be, what is assessed
subsequently is only the additional area.
3. But it can be seen that it was not a case considering the
provisions of Section 5A of the Act. Subsequently, a Division Bench of this
Court in Joy Joseph v. District Collector (2009(2) KLT 348) has taken
the view that if any construction is made on or after 1.4.1999 in the form of
a building or an addition to an existing building and if the plinth area of that
construction exceeds 278.7 sqmts, it is exigible to luxury tax. But if any
area is constructed before 1.4.1999 it was held that legislation relating to
tax has to be strictly construed and by interpreting and extending the
meaning of the words, no new liability can be imposed on the citizen. The
court did not agree with the view that any construction made prior to
W.A. NO. 1423/2009 :3:
1.4.1999 is also liable to be included and added on to the subsequent
construction to attract Section 5A of the Act. Merely because there is any
additional construction, the construction already completed before 1.4.1999,
if it is brought in or roped in to reckon the total plinth area, necessarily, it
will be imposing a tax on the area constructed prior to 1.4.1999 even before
commencement of Section 5A. In view of the above Division Bench
decision of this Court, the judgment under appeal is to be set aside. It is
declared that any portion of the construction made prior to 1.4.1999 is not
liable to be included for the purpose of imposition of luxury tax. It admits
of no doubt that the remaining extent is less than the area prescribed to
attract Section 5A in this case. Hence the assessments are liable to be set
aside. We do so.
The appeal is allowed. The amount paid as a condition for obtaining
stay will be refunded within a period of three months.
P.R. RAMAN, JUDGE.
P. BHAVADASAN, JUDGE.
KNC/-