IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33772 of 2009(N)
1. JAMES GEORGE, MALIAKEL HOSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. REVENUE DIVISIONAL OFFICER,
3. THAHSILDAR, KOTTAYAM.
4. VILLAGE OFFICER,
For Petitioner :SRI.PAULY MATHEW MURICKEN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :24/11/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C) No. 33772 OF 2009
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Dated this the 24th day of November, 2009
JUDGMENT
1. Petitioner has approached this Court aggrieved by
Ext.P5 order of the second respondent rejecting Ext.P4
appeal filed by him. The residential building of the petitioner
was assessed under the provisions of the Kerala Building
Tax Act, 1975, treating its plinth area as 292.11 sq. meters.
According to the petitioner, the plinth area was calculated
including the area of the car porch. Otherwise the plinth
area will be only 264.21 sq. meters. It is pointed out that a
Division Bench of this Court in Subhashchandrababu Vs.
State of Kerala, (2006 (2) KLT 189) held that the area of
the garage need not to reckoned for the purpose of
computing plinth area for assessment of Building Tax. In
view of the above decision, the petitioner had submitted
Ext.P4. The second respondent observed that as per
provisions contained in the statute, delay in filing the appeal
cannot be condoned beyond a period of six months, and
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therefore rejected the appeal.
2. A subsequent clarification of the legal position
through a judgment of this Court will not entitle the
petitioner to file any appeal against an assessment, after
expiry of the period of limitation or after expiry of the period
up to which the delay can be condoned by the appellate
authority. Therefore, I find no fault with Ext.P5 order of the
second respondent. Hence the writ petition is liable to be
dismissed.
3. However, the petitioner contended that he is
assessed with luxury tax under Section 5A of the Act, on the
premise that this building is having plinth area of more than
278.7 sq. meters. Contention is that, if the area of the
garage is excluded, the petitioner is not liable for payment
of luxury tax under 5A. It is evident from Ext.P6 receipt
that the petitioner had already remitted luxury tax up to the
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year 2007-2008. In the decision, Mohammed Sadique
Vs. Tahsildar, reported in 2006 (3) KLT 371, a learned
judge of this Court observed that even if the levy of luxury
tax under Section 5A with respect to the previous years are
unchallenged, an assessee can challenge the same for the
subsequent years, and res judicata will not apply in such
cases. Liability of Luxury Tax is a recurring liability from
year to year. So even assuming that, the petitioner suffered
payment of luxury tax for the earlier years, he is entitled to
challenge demand with respect to the subsequent years, by
invoking remedy by way of appeal against such demand, on
the ground that such levy is not sustainable.
4. Under the above circumstances, I am of the opinion
that inspite of dismissal of this writ petition holding Ext.P5
as valid, the petitioner can be given liberty to file appeal
against the demand if any made, for payment of luxury tax
under Section 5A for any subsequent years. The limitation
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for filing appeal in such case shall be computed from the
date of any such demand, treating the same as an
assessment of luxury tax under 5A, pertaining to the year/
years concerned. Therefore, it is made clear that, if any
appeal is filed against any demand or recovery pertaining to
luxury tax for the subsequent years, the second respondent
shall entertain and consider such appeal without insisting for
production of specific order of assessment.
The writ petition is disposed of with the above
observations.
C.K.ABDUL REHIM,
JUDGE
SS/.