The collection of tax without authority necessitates a refund despite lack of specific statutory provision for such refund.

J U D G M E N T

The petitioner is the owner of a residential building, which according to the petitioner, is having the plinth area 265.68 sq.mtrs. However, the said building was subjected to an assessment of luxury tax under Sec.5A of the Kerala Building Tax Act , 1975 by the 5^th respondent. Even though an appeal was submitted against the said order before the 4^th respondent, it was rejected as per Ext.P1, holding that, the plinth area of the building is more than 278.7 sq.mtrs., which is the ceiling limit contemplated under Sec.5A of the . The said order was taken up in revision, before the 3^rd respondent and it resulted in Ext.P2 order. In Ext.P2, based on re-measurement of the building carried out, it was found that, the plinth area is only 271.20 sq.mtrs and therefore, the petitioner cannot be imposed with the liability to pay the luxury tax in respect of the residential building. Thus the assessment order was set aside.

2. During the pendancy of the aforesaid proceedings that culminated in Ext.P2, an amount of Rs.28,000/- was collected by the respondents towards luxury tax. In the light of Ext.P2 order, the petitioner approached the respondents seeking refund of the said amount. However, the said application was ultimately rejected as per Ext.P3 by the 2^nd respondent on behalf of the 1^st respondent. In Ext.P3, it was held that, there is no provision in the Building Tax Act to order refund of the amount already collected. According to the 2^nd respondent, the benefit that the petitioner entitled to, based on Ext.P2 is that, he need not pay building tax from the date of the said order. This writ petition is submitted by the petitioner in these circumstances, challenging Ext.P3.

3. I have heard Sri. Priyesh Kumar, the learned counsel appearing for the petitioner and Smt. Reshmitha R. Chandran, the learned Senior Government Pleader for the respondents. 4. It is a fact that, the imposition of liability to pay the luxury tax by the statutory authorities was found to be unsustainable by the revisional authority, as evident by Ext.P2. The consequence of such finding is that, the imposition of liability upon the petitioner was found to be unsustainable right from the inception. It is to be noted that, in Ext.P2, there is a specific finding that, the total plinth area of the residential building of the petitioner is 271.2 sq.mtrs, whereas the luxury tax is imposable under Sec.5A of the Act in respect of the building having plinth area exceeding 278.7 sq.mtrs. Thus, in the light of the finding in Ext.P2, the petitioner could not have been imposed with the liability to pay luxury tax. Therefore, if at all any amounts were collected from the petitioner towards luxury tax, the collection of the said amounts were without any authority of law and hence, the petitioner has every right to get the amount back. The request of the petitioner seeking refund of the amount was rejected on the reason that, there is no provision in the Kerala Building Tax Act contemplating such refund. However, when an erroneous order passed by the assessing authority is interfered with and set aside by the revisional authority, even in the absence of any statutory provisions specifically authorising such refund, the respondent shall be bound to refund the amount, as the amounts so collected, would be without any sanction of law.

5. Apart from the above, it is also noted that, Subsection (2) of Sec.15 provides for refund in respect of an assessment order that is modified by invoking the power of rectification under the said provision, by reducing the demand. Even though this is not a case of rectification as contemplated under Sec.15, the principles therein can be applied in this case as well, because, the original assessment order was inte