Dismissed

Kovval Mohammed Kunhi v. the State of Kerala

Kerala HC23 Sept 2020WP(C)/12344/2019

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order levying luxury tax, alleging the building was non-exigible due to residential nature and post-2016 legislative amendments. The court held that the entire plinth area, including post-1999 additions, determines tax liability under Section 5A of the Kerala Building Tax Act, 1975. The petition was dismissed as there was no merit in the challeng

What did the court decide?

The writ petition was dismissed with no order as to costs.

Kovval Mohammed Kunhi Vs the State of Kerala — Property and Title | Kerala HC (2020)

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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 AMIT RAWAL

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WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942

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WP(C).No.12344 OF 2019(P)

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PETITIONER:

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KOVVAL MOHAMMED KUNHI, AGED 58 YEARS, S/O.ABDUL RAHIMAN, KOVVAL HOUSE, NEAR GUPS, THEKKIL PARAMBA, CHATTANCHAL, KASARAGOD, PIN- 671541.

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BY ADVS.

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SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001.

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2 THE DISTRICT COLLECTOR, CIVIL STATION, KASARAGODE, PIN- 671123.

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3 THE TAHSILDAR, TALUK OFFICE, KASARAGODE TALUK, KASARAGODE, PIN- 671123.

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BY ADV. R1-3 BY SRI. C.K.GOVINDAN, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.12344 OF 2019

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JUDGMENT

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Dated this the 23rd day of September 2020

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Petitioner, in the instant writ petition, has assailed Ext.P3 assessment order levying luxury tax on the building bearing No.IX/214 (old No.III/282) situated at Chemmanad Grama Panchayath on various gro unds.

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In support of the aforementioned prayer, it is alleged that the petitioner, in the year 1992, constructed building having a plinth area less than 278.7 sq.ms. subjected to building tax. The Age Certificate of the building was issued by the Secretary of the concerned Grama Panchayath, Ext.P1. Petitioner was served with a notice dated 20.11.2013, Ext.P2, calling upon him to produce certain documents in respect of the building. As per the assessment order dated 11.06.2014 levying luxury tax of Rs.2,000/- per annum with effect from 2013-14 was issued alleging that the building was constructed after 01.04.2013 with plinth area of 295.4 sq.ms.

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Learned counsel appearing on behalf of the

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WP(C).No.12344 OF 2019 -3-

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petitioner submits that against the assessment order the petitioner filed an appeal before the Revenue Divisional Officer, Kasargode, which was belated and dismissed by order dated 25.04.2015 Ext.P4. The said order was challenged in revision petition before the District Collector, Kasargode the same was dismissed being barred by law of limitation. The Assessing Authority usurped the jurisdiction in levying luxury tax as the building is not exigible to luxury tax, being in violation of the mandate of Article 265 of the Constitution of India. Law of limitation could not have been strictly applied as the reasons explained were justifiable condoning the delay and referring the matter back for consideration of revision petition on merits. It further submitted that as per the introduction of entry 62 in state list of VIIth schedule brought into force with effect from 16.09.2016 and amendment caused in Section 5A of the Kerala Building Tax Act, 1975 (hereinafter referred to as '1975 Act' for short) the competent Authority under 1975 Act cannot impose luxury tax on buildings involving different types of

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WP(C).No.12344 OF 2019

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activities, that is other than the residential buildings. He urges this Court for allowing this writ petition by quashing the impunged order.

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Sri. C.K. Govindan, learned Senior Government

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Pleader on other hand opposed the pleading and submitted that introduction of entry 62 with effect from 16.09.2016 would not come to the rescue of the petitioner as the case of additional construction relate back to year 2004, i.e., prior to the amendment. The age certificate would have no consequence as there is no rebuttal to the construction of first floor increasing the plinth area more than one prescribed under Section 5A of 1975 Act. This fact is not even denied in paragraph No.3 of the writ petition. In support of the aforementioned contentions he relied upon the judgment of the Division Bench of this Court in Simon V. Tahsildar (2008 (3) KLT 826) and submits that whenever there is change or alteration of plinth area of building, the assessment Authority is required to make a fresh assessment order which cannot be construed without jurisdiction. In order t o buttress the submission

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WP(C).No.12344 OF 2019 -5-

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relied upon another judgment of Fu ll Bench of this Court in State of Kerala V. Abdulla (2012 (1) KLT 178 ), and submits that the plinth area of building as a whole has to be considered with additions or extensions made after 01.04.1999 and not the additional construction raised at a subsequent time vis-a-vis earlier construction raised prior to 01.04.1999, thus urged this Court for dismissal of the writ petition.

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I have heard learned counsel for the parties, appraised the documents and submissions made thereof and of the view that there is no force or merit in the submission of Sri.Sabu George, learned counsel representing the petitioner. The Age Certificate, Ext.P1, though reflects the original construction of the building made in the year 1992 is less than the area mentioned in Section 5A of the 1975 Act, but fact of the matter is that it is a conceded case of the petitioner that the additional construction of the first floor was raised in the year 201314. Provisions of Section 5A of the 1975 Act was made effective to the plinth area of more than 278.7 sq.ms.

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WP(C).No.12344 OF 2019

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completed on or after 01.04.1999. The law with regard to the measurement and assessment of the plinth area for the purpose of accessibility of luxury tax in view of the decision rendered by Full Bench (supra) is no longer res integra. Entire plinth area of the building has to be taken into consideration not the newly constructed portion. In my considered view, petitio ner was given sufficient opportunity to challenge the dema nd raised, even though the revision petition preferred before the competent authority was barred by limitation. It would have been a futile exercise to remit the matter to the competent authority by condoning the delay.

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As an upshot of my findings, I do not find any merits in the writ petition, accordingly the writ petition is dismissed. There shall be no order to costs.

Sd/-

AMIT RAWAL

JUDGE

WP(C).No.12344 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	DATED 25.03.2019, TRUE COPY OF THE AGE CERTIFICATE ISSUED BY SECRETARY, CHEMMANAD GRAMA PANCHAYATH.
EXHIBIT P2	DATED 20.11.2013, TRUE COPY OF THE NOTICE ISSUED BY THE TAHSILDAR, KASARAGODE.
EXHIBIT P3	DATED 11.06.2014, TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE TAHSILDAR, KASARAGODE.
EXHIBIT P4	DATED 25.04.2015, TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, KASARAGODE.
EXHIBIT P5	DATED 14.03.2018, TRUE COPY OF THE REVISION PETITION FILED BEFORE THE DISTRICT COLLECTOR, KASARAGODE.
EXHIBIT P6	DATED 14.03.2018, TRUE COPY OF THE APPLICATION TO CONDONE DELAY IN FILING REVISION PETITION FILED BEFORE THE DISTRICT COLLECTOR, KASARAGODE.
EXHIBIT P7	DATED 14.03.2018, TRUE COPY OF THE APPLICATION FOR STAY FILED BEFORE THE DISTRICT COLLECTOR, KASARAGODE.
EXHIBIT P8	DATED 03.10.2018, TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, KASARAGODE.

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//TRUE COPY// PA TO JUDGE

Kovval Mohammed Kunhi v. the State of Kerala

Case brief

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Kovval Mohammed Kunhi v. the State of Kerala

Case brief

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