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IN THE HIGH COURT OF KERALA AT ERNAKULAM
HARISANKAR V. MENON, J.
Joseph – Appellant
Versus
State of Kerala – Respondent
W.P(C) No. 29679 of 2017
Decided on : 03-10-2024
(A) Kerala Building Tax Act, 1975 - Section 11 - Luxury tax assessment - Petitioner challenged the imposition of luxury tax on a residential building, arguing that certain areas should not be included in the assessment - The court found that the rejection of the appeal against the revised assessment order was arbitrary and without justification. (Paras 12, 13)
(B) Revision Petition - The court ruled that the petitioner was justified in filing an appeal against the revised assessment order, as the Act does not prohibit a second appeal against such orders. (Paras 12, 13)
Facts of the case:
The petitioner contested the luxury tax assessment on a residential building, claiming certain areas were improperly included in the tax calculation, leading to a series of appeals and revisions.
Findings of Court:
The court upheld the petitioner's right to appeal against the revised assessment order, deeming the rejection of the appeal arbitrary.
Issues: The main issue was whether a second appeal against a revised assessment order is permissible under the Act.
Ratio Decidendi: The court clarified that Section 11 of the Act allows for an appeal against any assessment order, including revised assessments, and that the earlier rejection of the appeal was unjustified.
Result: The challenge against Ext.P7 was rejected, but Ext.P9 was set aside, directing the 3rd respondent to consider the appeal on merit.
JUDGMENT :
The petitioner and the 6th respondent are the co-owners of the residential building bearing No.4/85 of Marangattupally Grama Panchayat. By Ext.P1, issued under the provisions of the Kerala Building Tax Act, 1975, (for short, ‘the Act’) luxury tax was demanded from the petitioner with respect to a residential building constructed by him. Though, an appeal was presented, pointing out that a shed behind the residential house and the truss work area in the terrace of the building ought not to have been taken into account for the purpose of imposition of luxury tax, by Ext.P3 order issued by the 3rd respondent, it was found that as regards the truss work area on the terrace portion, the petitioner has liability to pay tax and as regards the out house behind the residential house, the same need not be taken into account for the purpose of imposition of luxury tax.
2. Against Ext.P1, the petitioner preferred a revision petition under Section 9 of the Act before the 2nd respondent, District Collector. Pending the above revision petition, the appellate order at Ext.P3 stood implemented by Ext.P8 order dated 22.06.2016 by reducing the plinth area of the house, for the purpose of imposition of luxury tax.
3. The revision petition filed as above is rejected by Ext.P7 issued by the 2nd respondent, on the ground that the revision petition is barred by limitation since the appellate order was served on 21.06.2016 and the revision petition was filed only on 19.08.2016.
4. Against the revised assessment order of Ext.P8, though a further appeal is presented, the 3rd respondent, by Ext.P9 communication, informed the petitioner that there is no provision by which a fresh appeal can be filed against the revised assessment order.
5. Against Ext.P9, a further revision petition is preferred by the petitioner before the 2nd respondent District Collector as Ext.P14.
6. It is in the above situation that the present writ petition is filed by the petitioner challenging the findings in Ext.P7 as well as Ext.P9 issued by the 2nd and 3r respondents respectively.
7. I have heard Sri. Manuel Kachiramattam, the learned Counsel for the petitioner and Sri.Sayd M Thangal, the learned Government Pleader for the respondents.
8. The dispute in this writ petition is against Ext.P7 order issued by the 2nd respondent and Ext.P9 communication issued by the 3rd respondent.
9. As regards the findings in Ext.P7, it is to be straight away noticed that in the counter affidavit filed by the 2nd respondent, it has been specifically pointed out that Ext.P3 order against which the revision petition was filed was in fact served on 21.06.2016 and not on 22.07.2016 as pointed out in Ext.P4 revision petition. The said averment has not been controverted by the petitioner by filing a reply affidavit. In such circumstances, the findings contained in Ext.P7 to the effect that the revision petition is filed out of time cannot be said to be incorrect.
10. The next dispute is with respect to Ext.P9 communication issued by the 3rd respondent. The petitioner has filed the appeal before the 3rd respondent against the revised assessment order at Ext.P10. The 3rd respondent in Ext.P9 has taken the view that there is no provision by which a second round of appeal can be presented against the revised assessment order issued implementing the directions earlier issued by the appellate authority.
11. The said finding of the 3rd respondent does not appear to be the correct position of law.
12. This Court in W.P.(C).No.10414/2019 has considered the very same issue and has found as under:-
The court clarified that under the Kerala Building Tax Act, a second appeal against a revised assessment order is permissible, rejecting arbitrary limitations imposed by authorities.
The petitioner has a right to seek a revision regarding the luxury tax assessment under the Kerala Building Tax Act, 1975.
The collection of tax without authority necessitates a refund despite lack of specific statutory provision for such refund.
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 t....
The measurement of the plinth area determined liability for luxury tax under the Kerala Building Tax Act, with factual disputes not subject to writ jurisdiction.
The court emphasizes the importance of adhering to statutory timelines for appeals, while allowing for rectification of assessment errors under specific provisions of law.
The court mandates reassessment under Section 7 of the Kerala Building Tax Act due to disputed plinth area measurements.
Luxury tax liability under the Kerala Building Tax Act must consider the total plinth area of the building post-additions, overriding prior interpretations limiting the assessment to additional areas....
Proper procedural safeguards must be followed in tax assessments, ensuring notice to affected parties.
Luxury tax liability under the Kerala Building Tax Act excludes certain unroofed areas from plinth measurement.
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