Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1257 (KER)

Joseph v. State of Kerala

2024-10-03

HARISANKAR V.MENON

body2024
JUDGMENT : The petitioner and the 6th respondent are the co-owners of the residential building bearing No.4/85 of Marangattupally Grama Panchayat. By Ext.P1, issued under the provisions of the Kerala Building Tax Act, 1975, (for short, ‘the Act’) luxury tax was demanded from the petitioner with respect to a residential building constructed by him. Though, an appeal was presented, pointing out that a shed behind the residential house and the truss work area in the terrace of the building ought not to have been taken into account for the purpose of imposition of luxury tax, by Ext.P3 order issued by the 3rd respondent, it was found that as regards the truss work area on the terrace portion, the petitioner has liability to pay tax and as regards the out house behind the residential house, the same need not be taken into account for the purpose of imposition of luxury tax. 2. Against Ext.P1, the petitioner preferred a revision petition under Section 9 of the Act before the 2nd respondent, District Collector. Pending the above revision petition, the appellate order at Ext.P3 stood implemented by Ext.P8 order dated 22.06.2016 by reducing the plinth area of the house, for the purpose of imposition of luxury tax. 3. The revision petition filed as above is rejected by Ext.P7 issued by the 2nd respondent, on the ground that the revision petition is barred by limitation since the appellate order was served on 21.06.2016 and the revision petition was filed only on 19.08.2016. 4. Against the revised assessment order of Ext.P8, though a further appeal is presented, the 3rd respondent, by Ext.P9 communication, informed the petitioner that there is no provision by which a fresh appeal can be filed against the revised assessment order. 5. Against Ext.P9, a further revision petition is preferred by the petitioner before the 2nd respondent District Collector as Ext.P14. 6. It is in the above situation that the present writ petition is filed by the petitioner challenging the findings in Ext.P7 as well as Ext.P9 issued by the 2nd and 3r respondents respectively. 7. I have heard Sri. Manuel Kachiramattam, the learned Counsel for the petitioner and Sri.Sayd M Thangal, the learned Government Pleader for the respondents. 8. The dispute in this writ petition is against Ext.P7 order issued by the 2nd respondent and Ext.P9 communication issued by the 3rd respondent. 9. 7. I have heard Sri. Manuel Kachiramattam, the learned Counsel for the petitioner and Sri.Sayd M Thangal, the learned Government Pleader for the respondents. 8. The dispute in this writ petition is against Ext.P7 order issued by the 2nd respondent and Ext.P9 communication issued by the 3rd respondent. 9. As regards the findings in Ext.P7, it is to be straight away noticed that in the counter affidavit filed by the 2nd respondent, it has been specifically pointed out that Ext.P3 order against which the revision petition was filed was in fact served on 21.06.2016 and not on 22.07.2016 as pointed out in Ext.P4 revision petition. The said averment has not been controverted by the petitioner by filing a reply affidavit. In such circumstances, the findings contained in Ext.P7 to the effect that the revision petition is filed out of time cannot be said to be incorrect. 10. The next dispute is with respect to Ext.P9 communication issued by the 3rd respondent. The petitioner has filed the appeal before the 3rd respondent against the revised assessment order at Ext.P10. The 3rd respondent in Ext.P9 has taken the view that there is no provision by which a second round of appeal can be presented against the revised assessment order issued implementing the directions earlier issued by the appellate authority. 11. The said finding of the 3rd respondent does not appear to be the correct position of law. 12. This Court in W.P.(C).No.10414/2019 has considered the very same issue and has found as under:- “12. It is on account of the said illegality that the petitioners have filed the fresh appeal before the 2nd respondent in the second round of litigation. Unfortunately, this Court notices that the 2nd respondent, while issuing Ext.P4 order, has taken a rather interesting stand that, insofar as he has already issued an order in the earlier round, there cannot be a further appeal in the second round. It is under the provisions of Section 11 of the Act that an appeal is provided against an assessment order. Section 11 of the Act reads as under; “11. Appeals. – (1) Any assessee objecting to the amount of building tax assessed under section 9 or denying his liability to be assessed under this Act or objecting to any order of the assessing authority under this Act may appeal to the appellate authority against the assessment or against such order. Section 11 of the Act reads as under; “11. Appeals. – (1) Any assessee objecting to the amount of building tax assessed under section 9 or denying his liability to be assessed under this Act or objecting to any order of the assessing authority under this Act may appeal to the appellate authority against the assessment or against such order. (underline supplied) 13. A reading of the above provision would indicate that an appeal is prescribed against the fixation of building tax under the statute by an “order”. Section 11 nowhere states that against a revised assessment order, there cannot be a further appeal. There may be instances where, while issuing the revised assessment, the assessing authority can go wrong. This is one such instance. When that be so, the petitioners were perfectly justified in filing an appeal against the order at Ext.P3 before the 2nd respondent. The rejection of such appeal by Ext.P4 order is without any justification and arbitrary.” 13. In the light of the above, the findings in Ext.P9 issued by the 3rd respondent cannot be sustained. 14. In such circumstances I order this writ petition as under:- (i) The challenge against Ext.P7 issued by the 2nd respondent is rejected. (ii) Ext.P9 communication issued by the 3rd respondent is set aside. (iii) The 3rd respondent is directed to consider the appeal dated 20.08.2016 filed by the petitioner, on merit, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. (iv) The petitioner to be granted an opportunity of being heard while disposing the appeal as above. (v) The coercive steps pursuant to the revised assessment order at Ext.P8, will be kept in abeyance, till such time the 3rd respondent decides the appeal.