ISON GEORGE Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The petitioner, who is an owner of a residential building having an area of 188.5 Sq.m comprised in Sy.No.82/8-1 situated in Chethipuzha Village in Chaganasherry Taluk aggrieved of the assessment order, Ext.P1, Demand notice Ext.P1(a) and order dated 4.12.2019 calling upon him to pay the luxury tax as per the provisions of Section 5A of the Kerala Building Tax Act, 1979.

(2.) As per the facts, the petitioner is stated to have constructed 263.24 Sq.m of the property comprised in the aforementioned survey but the 3rd respondent ie., Tahsildar assessed the building by taking into consideration total plinth area as 357.30 sq.m. Resultantly, directed the petitioner to pay an amount of Rs.17,400/- in 3 equal installments of Rs.5800/- each. The petitioner preferred an appeal before the 2 nd respondent and also remitted the installment amount of Rs.5800/- on 16.8.2008. The 2nd respondent obtained a report from the 3rd respondent regarding the excluded portion covered by the Truss work and arrived at a total plinth area of 289.22 sq.m. However, the 2nd respondent again obtained a report dated 24.12.2013 from the 3rd respondent wherein the 3rd respondent reiterated his stand that the 24.45 sq.m was liable to be included in the assessable area. Vide order dated 4.2.2016, the 3rd respondent assessed the area to be 289.22 sq.m by including 24.45 sq.m of non residential portion.

(3.) The petitioner was not served with the order of the appellate court despite the fact that he had approached the office of the 2nd respondent to ascertain the fate of the appeal. Since he didn't get any response, he submitted an application under the Right to Information Act. The order of the appellate authority was communicated that he was not keeping well and he could not make arrangements for challenging the order. The revision petition before the first respondent ie., Secretary to Government (Taxes) was preferred but it was rejected vide order dated 1.6.2018 by barred by limitation. He was served with a revised Assessment order dated 4.12.2019 determining the plinth area of the residential building as 289.22 sq.m and assessed the building tax as Rs.9,000/-. The petitioner was also served with an order dated 4.12.2019, imposing Luxury Tax under Section 5A of the Kerala Building Tax Act. The learned counsel representing the petitioner submits that Section 5A was inserted to the Kerala Building Tax Act by the Kerala Finance Act 1999 charging a luxury tax on a plinth area of above 278.7 sq.m or more and completed on or after the 1 st day of April 1999 by specifying different rates of the area. The aforementioned Section was referable to Entry 62 of List II, Schedule 7 of the Constitution of India, as it stood prior to the Amendment of the Constitution. However, the post amendment the List II, was changed wherein the previous entry of luxury tax was substituted with 'Taxes on entertainments and amusements to the extent levied and collected by a Panchayat or a Municipality or a Regional Council or a District Council' .