Partly allowed

E.Usha v. the Secretary to Govt.& Others

Kerala HC12 Jan 2010WP(C)/37466/2009

Case brief

AI extract

What is this about?

This judgment considers a writ petition challenging building and luxury tax assessments. While dismissing the challenge to the finalized building tax assessment due to limitation, the court allowed the challenge to luxury tax liability based on a recurring cause of action. The court directed a fresh assessment considering terrace portions and suspended coercive recovery proceedings.

What did the court decide?

Directed the 5th respondent to consider luxury tax liability for future years based on the correct plinth area; coercive proceedings for recovery from January 2009 kept in abeyance.

E.Usha Vs the Secretary to Govt.& Others — Service and Employment | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931

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W.P.(C) No. 37466 of 2009(C)

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--------------------------

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PETITIONER:

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E.USHA,W/O.K.UNNIKRISHNAN, EDAKKUNNY WARRIEM, KRISHNA VIHAR, DIWAN SANKARA WARRIER ROAD, OLLUR P.O., THRISSUR DISTRICT PIN- 680 306.

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BY ADV. SRI.R.RAMADAS

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RESPONDENTS:

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THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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THE PRINCIPAL SECRETARY, REVENUE (SPECIAL CELL) DEPARTMENT, THIRUVANANTHAPURAM.

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THE DISTRICT COLECTOR, THRISSUR.

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THE REVENUE DIVISIONAL OFFICER, THRISSUR

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THE TAHSILDAR, TALUK OFFICE, THRISSUR.

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BY GOVERNMENT PLEADER ADV. MR. BIJOY CHANDRAN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.R. RAMACHANDRA MENON, J.

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W.P.(C) No. 37466 OF 2009

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Dated this the 12^th January, 2010

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J U D G M E N T

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The petitioner is challenging the steps taken by the assessing authority, appellate authority as well as the revisional authority, in fixing the liability with regard to payment of tax under the Kerala Building Tax Act. So also, the petitioner is aggrieved of fixation of the liability in respect of 'luxury tax' as provided under Section 5A of the very same enactment.

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The case of the petitioner is that the building belonging to the petitioner was wrongly assessed by the assessing authority, also including the 'terrace portion' of the same, just for the reason that it is having an aluminium roofing , which, however does not have any supporting walls. The learned Counsel for the petitioner, with reference to the law declared by this Court, submits that the terrace portion is not liable to be included as part of the 'plinth area' defined under Section 2(k) and further that the position in this regard has been made clear

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W.P.(C) No. 37466 OF 2009

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by the Government itself as per Ext.P16 Circular issued in this regard.

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It is contended that the very basis of the assessment goes in the above circumstance and as a natural consequence, the area constituting the 'terrace portion', which has been assessed as part of the plinth area of the building, if deducted the building is not exigible to any 'luxury tax' as well, as it will not have the minimum required area of 278.7 Sq.M. It is also brought to the notice of this Court by the learned Counsel for the petitioner that the liability to pay luxury tax under Section 5A, unlike the liability to pay building tax, being a recurring one, the petitioner is entitled to challenge the same in respect of the cause of action arising every year, as made clear by the Division Bench of this Court in Mohamad Sadik. vs. Tahsildar ( (3) KLT 271 ).

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Heard the learned Government Pleader as well, who submits that the assessment in respect of the Building tax payable by the petitioner has attained finality by virtue of the proceedings passed by the assessing authority as well as the

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W.P.(C) No. 37466 OF 2009

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appellate authority in the year 2007 itself. Though the petitioner preferred Revision Petition challenging the above proceedings, it has also been dismissed by the revisional authority/third respondent as per Ext. P15, stating that it was barred by Limitation. Since the statute very much takes care of the situation by providing appropriate remedy, also prescribing the time for filing appropriate proceedings , in the absence of any provision to condone the delay in filing the same, no interference is possible at the hands of this Court.

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As it stands so, the challenge raised by the petitioner against the assessment of 'building tax', is not liable to be interfered with. However, with regard to the liability to satisfy the luxury tax under Section 5A, by virtue of the decision in Mohamad Sadik. vs. Tahsildar ( (3) KLT 271) , there is a recurring cause of action and the petitioner is entitled to get the relief.

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In the above facts and circumstances, the Writ Petition is

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disposed of directing the the 5^th respondent to consider the

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W.P.(C) No. 37466 OF 2009

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liability of the petitioner to pay 'luxury tax' under Section 5A of the Act, in respect of the subsequent/future years, in the light of the decision rendered by this Court cited supra. The proceedings in this regard shall be finalised, after issuing a notice to the petitioner giving an opportunity of hearing, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of the judgment.

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Subject to the above, all further coercive proceedings in connection with the steps for realisation of 'luxury tax' in respect of the period from January, 2009 onwards, shall be kept in abeyance.

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The Writ Petition is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE.

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E.Usha v. the Secretary to Govt.& Others

Case brief

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E.Usha v. the Secretary to Govt.& Others

Case brief

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