Petitioner challenged luxury tax assessment claiming exemption due to pre-1999 construction. Court held that without filing an appeal within the six-month statutory period, writ jurisdiction is not exercised for questions of fact, though future appeals remain available.
Writ petition dismissed without prejudice to right to challenge future demands via appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.SIRI JAGAN
THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933
WP(C).No. 4266 of 2006(G) -------------------------
PETITIONER:
BASHEER T.P., THAYYIL PEEDIKAYIL MANNATH KUNI, MUCHUKUNNU P.O., MOODADI, KOYILANDY, KOZHIKODE.
BY ADV. SRI.SANTHARAM.P
RESPONDENTS:
GOVERNMENT PLEADER SRI NOBLE MATHEW FOR R1 TO 4
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4266 of 2006(G)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF APPLICATION DATED 14.05.98 TO THE PANCHAYATH.
EXT.P2: TRUE COPY OF FORM FOR COMPLETION CERTIFICATE DT.14.05.1998.
EXT.P3: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 19.09.1998.
EXT.P4: TRUE COPY OF RECEIPT DT.20.01.2004 FOR LUXURY TAX REMITTED BY THE PETITIONER UPTO 2004.
EXT.P5: TRUE COPY OF RECEIPT DT.30.03.2005 FOR LUXURY TAX REMITTED BY THE PETITIONER FORTHE YEAR 2005.
EXT.P6: TRUE COPY OF THE CERTIFICATE DT.27.12.2002 ISSUED BY THE SECRETARY MOODADI GRAMA PANCHAYATH.
EXT.P7: TRUE COPY OF THE ORDER OF REVISION DT.08.02.2005 ISSUED BY THE 2ND RESPONDENT.
/TRUE COPY/
P.A TO JUDGE
S. SIRI JAGAN, J.
W.P.(C) No.4266 of 2006
Dated this the 22nd day of December, 2011
JUDGMENT
The petitioner was assessed to luxury tax under Section 5A
of the Kerala Building Tax Act in respect of the petitioner’s building. According to the petitioner, that building was constructed before 1.4.1999 and the liability to pay luxury tax arose only with effect from 1.4.1999, when Section 5A was inserted in the Kerala Building Tax Act. The petitioner has produced some evidence to show that the building was constructed prior to 1.4.1999. Therefore, the petitioner seeks the following reliefs:
“1. Call for the records relating to the assessment of the luxury tax on the building constructed by the petitioner and connected proceedings thereafter, and quash the same in the nature of writ of certiorari. 2. Issue a writ directing the 4th respondent to rectify the assessment made by him and to refund the payment made towards the luxury tax.”
Orders of assessment under the Act have to be challenged in an
appeal under Section 11 of the Act. As per the said Section, the appeal has to be filed within thirty days from the date of service
W.P.(C)No.4266/06 2
of the notice of demand relating to the assessment or date of service of the order. But, the appellate authority has powers to admit the appeal presented after the expiry of the said period, if sufficient cause is shown as to why the appeal could not be presented within the period stipulated. But, no appeal shall be admitted, after a period of six months from the date of service of the demand notice or service of the order. Admittedly, the petitioner did not file the appeal against the assessment order within the time stipulated. That being so, I do not think that the petitioner can, at this point of time, challenge the assessment order and demand notice. Without challenging the same appropriately, insofar as what is raised is a question of fact, I am not inclined to entertain this writ petition, in view of the decision of the Division Bench in Assistant Commissioner of Central Excise v. Krishna Poduval [2005(4) KLT 947].
the petitioner is at an end for all time to come. Luxury tax being a recurring tax which has to be paid every year and there being no estoppel in taxation matters, the petitioner can very well file an appeal against the demand for future years as
W.P.(C)No.4266/06
3
provided under Section 11. This position of law has already been laid down by this Court in Mohamad Sadik v. Tahsildar [2006(3) KLT 271]. Therefore, without prejudice to the right of the petitioner to challenge the demands for future years within the time stipulated in Section 11 for filing an appeal, this writ petition is dismissed.
S. SIRI JAGAN, JUDGE
acd
W.P.(C)No.4266/06 4
3 issues framed by the court
Whether a writ petition can be entertained to challenge an assessment order when no appeal was filed within the statutory limitation period under Section 11.
Whether the petitioner has a remedy to challenge future demands for luxury tax.
Whether the writ petition should be dismissed in light of the petitioner's failure to exhaust the appellate remedy.
Colour shows how this judgement treated each authority
Assistant Commissioner of Central Excise v. Krishna PoduvalReferred¶40
[2005(4) KLT 947]
Mohamad Sadik v. TahsildarReferred¶45
[2006(3) KLT 271]
2 provisions across 1 enactments
Basheer T.P.
The Chief Secretary, Govt. of Kerala
The District Collector, Civil Station, Kozhikode
The Revenue Divisional Officer, Civil Station, Kozhikode
The Tahsildar, Taluk Office, Kozhikode
S. Siri Jagan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
