Allowed

Susamma v. Tahsildar, Kottayam

Kerala HC16 Nov 2012WP(C)/9502/2007

Case brief

AI extract

What is this about?

Petitioner challenged luxury tax assessment imposed on building. Court held that since ground floor was sold in 2005, petitioner cannot pay recurring luxury tax for period after sale. Orders of Revenue Divisional Officer and District Collector setting aside charge for post-sale period.

What did the court decide?

Exhibits P4 and P5 set aside; Tahsildar directed to compute luxury tax afresh reducing ground floor area from 01/05/2005 with adjustment of amounts paid.

Susamma Vs Tahsildar, Kottayam — Landlord and Tenant | Kerala HC (2012)

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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 A.M.SHAFFIQUE

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FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934

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WP(C).No. 9502 of 2007 (F)

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PETITIONER(S):

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1. SUSAMMA, W/O.PHILIP MATHEW THARAKAN,

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KALAPURAKKAL HOUSE, VELOOR KARA, KOTTAYAM.

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2. MATHEW PHILIP THARAKAN, KALAPURACKAL

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HOUSE, VELOOR KARA, KOTTAYAM

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REPRESENTED BY POWER OF ATTORNEY HOLDER

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PHILIP MATHEW THARAKAN, KALAPURACKAL HOUSE, KOTTAYAM.

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BY ADV. SRI.K.A.HASHIM

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RESPONDENT(S):

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1. TAHSILDAR, KOTTAYAM.

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2. REVENUE DIVISIONAL OFFICER, KOTTAYAM.

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3. DISTRICT COLLECTOR, KOTTAYAM.

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ADDL.R4 IMPLEADED

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4. MAJNU PUNNOOSE, PUTHEN PURACKAL, KALAPPURACKAL MANSON HOUSE, VELOOR, PUTHANANGADI, KOTTAYAM.

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(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 22/3/07 IN I.A.NO.4489/07)

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R1-R3 BY ADV.SRI.MANOJ.P.KUNJACHAN, GOVERNMENT PLEADER

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R4 BY ADV. SRI.K.GOPALAKRISHNA KURUP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9502 of 2007 (F)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	TRUE COPY OF SALE DEED DATED 30/4/2005.
EXT.P2:	TRUE COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DTD 16/6/2005.
EXT.P3:	TRUE COPY OF RECEIPT OF REMITTANCE OF LUXURY TAX BEFORE THE VILLAGE OFFICE, VELOOR.
EXT.P4:	TRUE COPY OF ORDER OF 2ND RESPONDENT DTD.
EXT.P5:	TRUE COPY OF ORDER DTD 21/2/2007 ISSUED BY 3RD RESPONDENT.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO JUDGE

**A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.9502 of 2007

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Dated this the 16^th day of November 2012

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J U D G M E N T

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The petitioner challenges the assessment made by the Tahsildar under the Building Tax Act in respect of the building belonging to him. Ext.P2 is the original assessment which indicates that residential building is having a plinth area of 335.55 sq.meter and a sum of Rs.15,000/- was assessed as building tax. In view of the fact that the plinth area of building was above 278.70 sq.meters, luxury tax was also imposed at the rate of Rs.2,000/- per year and he was called upon to remit Rs.8,000/- for the period from 2002-2003 upto 2005-2006. Ext.P2 was challenged before the Revenue Divisional Officer which came to be dismissed. Revision filed before the District Collector was also dismissed. Thereafter, the writ petition is filed.

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It is the case of the petitioner that though initially when the building was constructed, it has an area of 335.55 sq.meter, by virtue of Ext.P1 sale deed dated 30/04/2005, ground floor of the building No.KMC 30/34A was sold in favour

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W.P.C.No.9502/2007

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of additional party respondent. Once certain area of the building is sold along with the undivided 1/3^rd share of the property, apparently the owner's right in respect of building will be reduced to the extent of the building area already sold.

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That being the situation, if the petitioner's right is confined to the area less than 278.7 sq.meter, he may not have the liability to pay the recurring luxury tax as contemplated under the provisions of the Building Tax Act. Ext.P1 is dated 30/04/2005. Therefore, the assessment made has to be confined for the year upto date of sale i.e. 30/04/2005. In other words, there is no obligation on the part of the petitioner to pay any amount towards luxury tax for the period 2006-2007.

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Hence I am of the view that Ext.P2 to the extent that it imposes an obligation on the part of the petitioner to pay luxury tax for the period 2005-2006 cannot be disturbed.

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It seems that by Exts.P4 and P5, the Revenue Divisional Officer as well as the District Collector had proceeded on the basis that only undivided share of the land has been sold and the petitioners have the liability to pay the luxury tax for the entire building. The right of the petitioners in respect of the

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W.P.C.No.9502/2007

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ground floor of the building is alienated by them as per Ext.P1. For that reason the petitioners cannot be called upon to pay luxury tax thereafter since their right has already been reduced by the area covered by the ground floor of the building.

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In that view of the matter, I set aside Exts.P4 and P5 and there shall be a direction to the Tahsildar, Kottayam to compute the luxury tax afresh after reducing the plinth area of the ground floor of the building with effect from 01/05/2005 and then pass appropriate orders. Any amount already paid by the petitioners shall be adjusted towards the amount payable by him after correct computation of the tax.

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This writ petition is disposed of accordingly.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.No.9502/2007 4

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W.P.C.No.9502/2007 5

Susamma v. Tahsildar, Kottayam

Case brief

What is this about?

What did the court decide?

Susamma v. Tahsildar, Kottayam

Case brief

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What did the court decide?

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