Remanded

Dr.K.P.Majeed v. District Collector

Kerala HC14 Nov 2016WP(C)/7360/2013

Case brief

AI extract

What is this about?

In this writ petition, the retired Civil Surgeon challenged the levy of luxury tax under Section 5A of the Kerala Building Tax Act, 1975, claiming his building was completed before the statutory cut-off date, though facts regarding completion were disputed.

What did the court decide?

Impugned notice under Ext.P5 set aside; assessing authority directed to issue fresh notice within three months.

Dr.K.P.Majeed Vs District Collector — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938

¶5

WP(C).No. 7360 of 2013 (T)

¶6

PETITIONER(S):

¶7

DR.K.P.MAJEED,

¶8

CIVIL SURGEON (RETIRED), 'SUBAH', CHOVVA P.O., KANNUR DISTRICT - 670 006.

¶9

BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL

¶10

RESPONDENT(S):

¶11

1. DISTRICT COLLECTOR CIVIL STATION, KANNUR - 670 002.

¶12

2. TAHSILDAR, TALUK OFFICE, KANNUR - 670 002.

¶13

3. VILLAGE OFFICER, KANNUR I VILLAGE, KANNUR - 670002.

¶14

BY GOVERNMENT PLEADER SMT.M.M.JASMIN

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

¶17

WP(C).No. 7360 of 2013 (T)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS

¶20

EXT.P-1	A TRUE PHOTOCOPY OF THE OCCUPANCY CERTIFICATE DATED 24.2.1998 ISSUED BY KANNUR MUNICIPALITY
EXT.P-2	A TRUE PHOTOCOPY OF THE PROPERTY TAX RECEIPT DATED 13.12.1999 FOR THE PERIOD 1997-1998 (II)
EXT.P-3	A TRUE PHOTOCOPY OF THE ORDER OF ASSESSMENT DATED 26.9.2001 ISSUED BY THE 2ND RESPONDENT.
EXT.P-4	A TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 25.3.2002 ISSUED BY THE 3RD RESPONDENT.
EXT.P4(A)	A TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 11.12.2002 ISSUED BY THE 3RD RESPONDENT.
EXT.P-5	A TRUE PHOTOCOPY OF THE NOTICE DATED 28.12.2012 ISSUED BY THE 3RD RESPONDENT

¶21

RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.7360 of 2013

¶26

Dated this the 14^th day of November 2016

¶27

J U D G M E N T

¶28

Petitioner has approached this Court challenging levy of luxury tax under the Kerala Building Tax Act, 1975 (hereinafter referred to as 'the Act').

¶29

The main contention urged by the petitioner is that the liability to pay luxury tax arises only if the building is constructed after 01/04/1999 as contemplated under Section 5A of the Act. According to the petitioner, the building situated in Sy.No.887/2 of Kannur 1 Village constructed as per building permit No.198/95 was completed as on 16/11/1997 as borne out by the occupancy certificate Ext.P1 dated 24/02/1998. Further, the petitioner had paid building tax for the year 1997-98 as evident from Ext.P2. However, assessment proceedings were taken and the petitioner was called upon to pay building tax as well as luxury tax. It is stated that, in respect of the building, the petitioner had already paid the building tax and the petitioner has no dispute regarding the same. The only dispute raised is regarding the liability to pay luxury tax. An attempt had been made against the petitioner by

¶30

W.P.C.No.7360/2013

¶31

¶32

Ext.P5 dated 28/12/2012 calling upon the petitioner to pay luxury tax from 2001-2002, 2012-2013, which is being impugned.

¶33

Statement is filed on behalf of the 2^nd respondent inter alia stating that, in the return, Ext.R2(a) filed by the petitioner under the Act, the petitioner had shown the date of completion of the building as June 1999 and the date of occupation as July 1999 which itself would show that the assessment was regular and in terms with the statutory provision.

¶34

Reply affidavit has been filed by the petitioner in which he has stated the circumstances under which Ext.R2(a), the return came to be prepared. According to the petitioner, the date of completion and the date of occupation etc were filled up by the village authorities itself and they have only obtained the signature of the petitioner in the format.

¶35

The only question to be considered in the present writ petition is whether the petitioner is liable to pay luxury tax in terms of Section 5A which reads as under:

¶36

“5A. Charge of luxury tax - (1) Notwithstanding anything contained in this Act, there shall be charged a luxury tax of

¶37

W.P.C.No.7360/2013

¶38

¶39

two thousand rupees annually on all residential buildings having a plinth area of 278.7 square metres or more and completed on or after the 1^st day of April, 1999.”

¶40

No doubt, if the building is constructed prior to 01/04/1999, the question of liability to pay building tax does not arise. The petitioner now contends that the building was constructed prior to 01/04/1999 for which he has produced certain records, Exts.P1 and P2. This, apparently, is a question of fact which cannot be decided by this Court in a writ petition under Article 226 of the Constitution of India. Petitioner has also narrated certain circumstances under which Ext.R2(a) came into existence. This, again, is also a fact which has to be taken note of while deciding the issue. Therefore, I am of the view that the matter requires re-consideration.

¶41

Accordingly, this writ petition is disposed of as under: i) Ext.P5 is set aside.

¶42

ii) The assessing authority shall issue fresh notice to the petitioner in respect of levy of luxury tax and the petitioner shall be at liberty to file proper objection with all the necessary

¶43

W.P.C.No.7360/2013

¶44

¶45

documents, which shall be considered by the assessing authority and appropriate orders shall be passed accordingly. This shall be done within a period of three months from the date of receipt of a copy of this judgment.

¶46

(sd/-)

¶47

(A.M.SHAFFIQUE, JUDGE)

¶48

jsr

Dr.K.P.Majeed v. District Collector

Case brief

What is this about?

What did the court decide?

Dr.K.P.Majeed v. District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Hotel Roma Central Vs Assistant Commissioner (Assmt.)

Navajeevan Trust Vs State of Kerala

V.M. Abdul Jabbar Vs the Additional Registering Authority

Parvathi Das M Vs the Mahatma Gandhi University

Ratnam Vs State of Kerala

Laila Beevi Vs the Indian Overseas Bank