IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10706 of 2010(K)
1. TREVER FERNANDEZ, CHIANTREL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DISTRICT COLLECTOR, ERNAKULAM,
3. THE REVENUE DIVISIONAL OFFICER,FORT
4. THE TAHSILDAR, KOCHI TALUK, TALUK OFFICE
5. THE VILLAGE OFFICER, FORT KOCHI.
For Petitioner :SRI.DILEEP VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :23/07/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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W.P.(C) No. 10706 OF 2010
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DATED THIS, THE 23RD DAY OF JULY, 2010.
J U D G M E N T
The issue involved in this writ petition is fixation of liability under
Section 5 of the Kerala Building Tax Act in respect of a building
constructed by the petitioner. According to the petitioner, the building does
not have the requisite plinth area of 278.7 square metres so as to attract
luxury tax and without regarding the facts and figures, the assessment was
finalised by the assessing authority, the 4th respondent, by passing the
assessment order. Petitioner filed an appeal before the third respondent
Revenue divisional Officer and requested re-measurement of the plinth area.
After re-measurement, excluding the area of the car porch, it was found
that the plinth area was 294.95 M2, which in turn, very much attracted the
liability to pay luxury tax. Accordingly, interference was declined and
the appeal was dismissed. Petitioner preferred a revision petition before the
second respondent which also met with the same fate. After submitting
Ext.P8 before the second respondent to re-consider the matter, petitioner
has approached this court by filing the present petition.
2. Heard the Government Pleader as well. It is brought to the notice
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of this Court by the learned counsel for the petitioner that pursuant to
Ext.P8 application preferred by the petitioner before the second respondent,
the second respondent had instructed the Assistant Engineer (PWD)
Mattancherry to conduct a proper measurement and fix the plinth area of the
building, vide letter B7-22 741/2010 dated 2.6.2010. Pursuant to this, the
building was inspected and measurement was conducted by the said
authority who submitted a report before the 4th respondent certifying that
the total plinth area of the building is 272.66M2 and that the plinth area of
the car porch is 9.56 M2. The factual position in this regard has been
communicated by the 4th respondent to the learned Advocate General as per
letter B3-957/2006 dated 2.7.2010, which is produced before this Court by
the learned Government Pleader.
3. In the above circumstances, this Court finds that the tax liability
mulcted under Section 5A of the Kerala Building Tax Act holding that the
building is having the requisite plinth area of 278.7 M2. is not correct and
the actual the plinth area of the petitioner’s building is much less than the
required extent as conceded by the concerned respondent, including the
assessing authority, vide his letter 2.7.2010, as mentioned above.
4. In these circumstances, nothing further remains to be considered or
no ‘fact adjudication’ is necessary. Accordingly, it is declared that the
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building belonging to the petitioner is not having the requisite plinth area
so as to attract tax liability under Section 5A of the Building Tax Act.
Accordingly, the order of assessment and the orders passed by the Appellate
Authority as well as the Revisional Authority impugned in this writ petition
are set aside.
The writ petition is allowed. No cost.
P.R. RAMACHANDRA MENON,
(JUDGE)
KNC/-