V.S. Siddique v. NONE

P.R. RAMAN & = = = = = = = = =W.P.(C) NO. 29397 OF 2005= = = = = = = = = = = = = =DATED THIS, THE 29TH DAY OF AUGUST, 2008.J U D G M E N TPetitioner seeks to quash Exts.P1, P3 and P9 produced in this writpetition. His building was assessed to luxury tax taking the plinth area as284.40 m2. As per Section 5 A of the Building Tax Act, if the plinth areaexceeds 278.7 M2 it is liable to be assessed for the purpose of luxury tax.But according to the petitioner, while calculating the plinth area, the areaoccupied by the car garage and the shed meant for storing firewood are alsoincluded and if these areas are excluded, the plinth area will come below287.7 M2 and therefore, below the area prescribed for assessment of luxurytax. He placed reliance on the decision reported in Jayakumar v. State ofKerala (2006(2) KLT 34).2. In the counter affidavit filed by the State, it is averred that thepetitioner's building is a residential building constructed in 2003, the plintharea of which is 278.m2. It is true that in the decision reported inJayakumar's case (supra) this court held that the garage area cannot be taken WP(C) 29397/2005:2:into account while determining the plinth area of residential building. It istrue that the area meant for storage of firewood should also be excluded forthe purpose of determining the plinth area. But the exact area occupied bythe garage or the shed meant for storing firewood is not stated in the writpetition. Petitioner has produced Ext.P5 and P5(a) which is a copy ofmemorandum of revision filed before the Revenue DivisionalOfficer,wherein he has specifically shown the area occupied by the garageas 210 sq.ft. and the firewood storage shed as 120 sq.ft. However, theauthorities did not enter any finding regarding the actual plinth areaexcluding the garage and firewood storage shed obviously because thebuilding was assessed to building tax and the petitioner had not raised anyobjection regarding the area and satisfied the demand for building tax bypaying the amount in four instalments as contemplated by the rules. Onlywhen a proceeding under Section 5A of the Act was initiated for assessmentof luxury tax he raised a dispute regarding the plinth area of the garage andfirewood shed. According to the respondents, one the petitioner acceptedthe assessment for the purpose of building tax, he cannot turn round and saythat there is any dispute regarding the plinth area. Though it is not in somany words stated, it is impliedly taken that there is an estoppal or waiver WP(C) 29397/2005:3:on the part of the petitioner by his conduct in not raising a dispute earlier. 3. The mere fact that amounts were paid towards building tax and thepetitioner has not raised any dispute at that time will not constitute waiveror estoppal since the assessment now made is under a different provisionnamely, for luxury tax under Section 5 A of the Act. In tax matters evenpayment of the tax demanded on any particular issue being not agitated willnot constitute res judicata in a subsequent year of assessment because eachyear of assessment is taken as different from the other. Further, there is noadmission as such on the part of the petitioner that the plinth area asassessed by the authorities inclusive of the garage and the firewood storageshed is correct. For variety of reasons he might not have challenged theproceedings towards the building tax either because it is one time paymentor that the difference in the amount if assessed excluding the disputed areamay not be a big amount worth to challenge. Further, the question as towhether the area occupied by the garage is includable in the plinth area forassessment itself was doubtful. Earlier, a learned Judge of this Court, inChandramohan v. Revenue Divisional Officer (2005(1) KLT 593) hadtaken a different view and held that the area occupied by the garage isincludable. But the said decision was reversed by this Court in W.A. No. WP(C) 29397/2005:4:439/2005 and connected cases and later a Division Bench of this Court inJayakumar's case (2006(2) KLT 34) also held that the the plinth area ofgarage cannot be taken into account while determining the plinth area ofresidential building, under the Act. Therefore, the question as to whetherthe area occupied by the garage is includable or not is a legal issue andthere cannot be any estoppal when the said question arises in a subsequentproceedings. In the circumstances, the authorities ought to have consideredwhether on merits the area occupied by garage and firewood storage, ifexcludable, the plinth area of the building in question will come below278.7 m2 in which case the liability to pay any luxury tax may not arise.Since this factual dispute has not been considered on merits, I set aside theimpugned orders Exts.P1, P3 and P9 and direct the assessing officer toconsider the actual area occupied by the garage and firewood shed andexclude such area from the total plinth area .and if it is below 278.7m2 thequestion of assessing the petitioner's building for luxury tax may not arise.On the other hand, even after exclusion of such area, still if it is found thatthe plinth area of the building is more than 278.m2, then he can be assessedto luxury tax. WP(C) 29397/2005:5:4. Fresh orders shall be passed subject to what is stated above. Incase the petitioner has paid any amount during the pendency of theproceeding towards luxury tax in question and if it is found that he is notliable to pay any luxury tax, such amount paid by him shall be refunded; buthowever, without any interest.The writ petition is allowed as above.P.R. RAMAN,(JUDGE)knc/-