Point of law; An erroneous determination of plinth area for the purposes of building tax, that has already been completed on an assessee, cannot be the sole basis for the levy of luxury tax for all time.

JUDGMENT :

The petitioner is the owner in occupation and enjoyment of 24.420 cents of landed property having a residential building, in Sy. No.254/6A/4/24 of Chengalam East Village of Kottayam Taluk, obtained as per Ext. P1 sale deed.

2. The residential building was rebuilt and the construction was completed in the year 2009-2010. According to the petitioner, the building is having a plinth area of 276.57 Square meter (sq. m.).

3. As per Section 5 of the Kerala Building Tax Act, 1975 (hereinafter referred to as the 'Act'), building tax shall be charged on every building based on the plinth area at the rate specified in the Schedule to the Act. Section 5A of the Act (as it stood prior to 01.04.2014) provides that buildings having a plinth area of 278.7 sq. m. or more and completed on or after 01/04/1999 are liable to be levied with luxury tax of Rs.2,000/-per annum.

4. The petitioner states that, appurtenant to the said residential building, there is a temporary shed with sheet roofing and wire mesh walls for storing rubber sheets, manure and plastic covers for the use in the rubber nursery run by him.

5. The Assessing Authority, the Taluk Tahsildar, Kottayam, the 3rd respondent, passed Ext.P2 order of assessment of tax for the building under Section 9 of the Act under residential category, showing a plinth area of 301.57 sq. m. followed by Ext.P3 demand notice under Section 10 levying a building tax of Rs.6,000/-. The Assessing Authority also imposed a luxury tax of Rs.2,000/-per annum for the building under Section 5A of the Act, as per Ext. P4 proceedings.

6. Against Exts. P2, P3 and P4, the petitioner preferred an appeal before the 2nd respondent, the Revenue Divisional Officer (RDO), under Section 11 of the Act. In the appeal, the petitioner contended that the Assessing Authority went wrong in determining the plinth area of the building by taking into account the temporary shed appurtenant to the petitioner's residential building. The RDO, by Ext. P7 order, rejected the appeal.

7. Against Ext.P7 order, the petitioner preferred a 1st revision petition before the District Collector, the respondent, under Section 13 of the Act. Since the petitioner could not file the revision petition within the period of 30 days stipulated under Section 13(3) of the Act, an application for condoning delay in filing the revision petition was also filed with medical certificates to show sufficient cause for not filing the revision petition within time. The District Collector, without going into the merits, rejected the revision petition by Ext.P9 order stating that the petitioner has not shown sufficient cause for not filing the revision petition within the period provided under Section 13 of the Act. The District Collector found that, though there is a delay of one year in filing the revision petition, the petitioner has explained the delay of 4½ months only and there is no proper explanation for the delay occurred thereafter.

8. Exts.P2, P3, P4, P7 and Ext.P9 order of the District Collector are challenged in the writ petition. Direction is also sought to reconsider the revision petition on merits and to direct the assessing authority to make fresh assessment as per the statutory mandates.

9. A Counter Affidavit is filed by the 3rd respondent stating that the disputed construction is part of usage area and cannot be exempted for building tax assessment. It is further averred that the revision petition was dismissed as no sufficient reason was given for condoning the delay. It is also stated that the petitioner has remitted the entire building tax and the luxury tax was remitted upto 2012-13.

10. Heard Sri.Tom Jose, the learned counsel for the petitioner and Sri. K.M. Faisal, the learned Government Pleader for the respondents.

11. The petitioner contends that the temporary shed appurtenant to his residential building is not liable to be taken into consideration for determining the plinth area of the building for assessment of building tax as per the prov