## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942**
## **WP(C).No.14847 OF 2015(E)**
## **PETITIONER/S:**
**KURIAN ABRAHAM AGED 63 YEARS KALLIVAYALIL HOUSE, PALA.**
**BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY**
## **RESPONDENT/S:**
- **1 THE DISTRICT COLLECTOR KOTTAYAM-686 001.**
- **2 THE REVENUE DIVISIONAL OFFICER PALA-686 575.**
- **3 THE TAHSILDAR MEENACHIL, PALA-686 575**
- **4 THE VILLAGE OFFICER LALAM VILLAGE, LALAM, PALA-686 575**
**R1 BY GOVERNMENT PLEADER**
## **OTHER PRESENT:**
## **SR.GP.C.K.GOVINDAN**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2020, THE COURT ON 11-11-2020 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
**Dated this the 11[th] day of November, 2020**
**The writ petition is filed aggrieved by the imposition of luxury tax on the petitioner's residential building. The brief facts, as narrated in the writ petition, are as follows:**
**During 1997-98, the petitioner made certain modifications to his residential building. As part of proceedings for assessment of one time building tax, the plinth area of the building was measured and found to be 283.82 m² and by proceedings dated 26.02.2001, Rs.9000/- was demanded towards building tax. Though the petitioner was unhappy with the computation of the plinth area, he paid the tax. Later, show cause notice dated 20.12.2001 was received, requiring the petitioner to show cause as to why luxury tax should not be imposed**
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**for his building. The petitioner replied, explaining that construction was completed before 01.04.1999, the appointed day under Section 5A of the Kerala Building Tax Act and hence, the building cannot be assessed for luxury tax. The third respondent refused to accept the explanation and issued an order imposing luxury tax on the building. That order was challenged in appeal before the second respondent. The appeal was dismissed by order dated 21.08.2008. Aggrieved, the petitioner took up the matter in revision before the first respondent and by Ext.P5 order, the first respondent set aside the impugned orders issued by the third and second respondents and directed reconsideration of the matter for the limited purpose of re-assessing building tax after excluding the plinth area of the car porch. Accordingly, the matter was reconsidered by the**
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**third respondent and Ext.P6 order passed, affirming the imposition of luxury tax under Ext.P5. Based on the report of the Village Officer, it was found that the plinth area was calculated originally after excluding the car porch. The appeal as well as revision filed against Ext.P6 were rejected, finding the second round of challenge to be not maintainable. Hence this writ petition.**
**2. Heard Sri.Mathew John, learned Counsel for the petitioner and Sri.C.K.Govindan, learned Senior Government Pleader.**
**3. Learned Counsel for the petitioner has assailed the findings in the impugned orders on the following grounds:**
**The residential building was in existence for more than 30 years as evidenced by Exts.P1 to P3. Only modifications were made to the existing**
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**building and even that work was completed prior to 01.04.1999. Sufficient opportunity was not given to prove that the construction was completed before 01.04.1999. Payment of one time building tax without objection does not preclude the petitioner from challenging the demand for luxury tax. The earlier orders having been set aside in Ext.P5 and re-assessment directed, the petitioner was at liberty to re-agitate all points. Rejection of the appeal and revision on the specious ground of absence of provision for a second round of challenge, is illegal.**
**4. Per contra, the learned Senior Government Pleader contended that the 4[th] respondent had assessed the building for one time tax, after measuring out the plinth area to be 283.82 m² and the petitioner had remitted the tax without demur. Further, in the Form II return, the date of**
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**completion of construction of the building was entered as 15.10.1999 and date of occupation as, 27.01.2000. The direction for re-assessment as per Ext.P5, was for the limited purpose of excluding area of the car porch from the total plinth area of the building. The contention that the building was constructed prior to 01.04.1999 was rejected under Ext.P5. The petitioner having failed to challenge the said finding in Ext.P5, is estopped from raising that challenge in the guise of assailing Ext.P6 order.**
**5. I find substance in the contention of the learned Counsel for the petitioner that, the mere fact of the petitioner having failed to challenge the assessment of one time building tax, does not estopp him from challenging the assessment of luxury tax. But, the fact remains that, in the return submitted under Section 5, the petitioner**
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**had entered the date of completion of the building as 15.10.1999 and the date of occupation as 27.01.2000. The contention that the petitioner was not given opportunity to let in evidence of his building having been constructed prior to 01.04.1999 cannot be countenanced, since, from the impugned orders, it is evident that sufficient opportunity was afforded. It is also clear from Exts.P5 and P6 orders that, while measuring the plinth area of the building, the old portion having plinth area of 80.19 sq.mtr, was excluded and the plinth area of the new construction alone reckoned for the purpose of assessment under Sections 5 and 5A of the Act. From the counter affidavit of the third respondent, it is revealed that the fourth respondent had inspected the building on 23.06.2015 and found that some renovations were made to the old portion of the**
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**building, thereby making it impossible to identify the old and new portions and that the total plinth area of the building was found to be 399.64 m².**
**6. As rightly contended by the learned Government Pleader, having failed to challenge the finding in Ext.P5 order, of the construction having been completed after 01.04.1999, the petitioner cannot be permitted to re-agitate the issue while challenging Ext.P6 order. The settled legal position is that, unless the adverse findings in the remand order are challenged in appeal, those findings cannot be challenged before the lower court/forum to which the matter is remanded (see** _**Nain Singh v. Koonwarjee and others [1970 (1) SCC 732]**_ **).**
**7. There is substance in the contention of the learned Counsel for the petitioner that, the challenge against Exts.P9 and P12 could not have**
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**been repelled by the appellate and revisional authorities on the specious reasoning of there being no provision for a second round of challenge. The first respondent having set aside the earlier orders and having directed the third respondent to issue fresh orders, the fresh order was open to challenge if the challenge was confined to the finding rendered in terms of the remand order. The attempt through the appeal and revision having been to re-agitate even the concluded issues, Exts.P9 and P12 do not warrant interference.**
**8. From the pleadings and the contentions it emerges that the plinth area of the building was measured and found to be 283.82 m² for the purpose of assessment of building tax under Section 5 of the Act. The assessment or the consequent demand for tax was not challenged by the petitioner. The**
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**plinth area of the building was measured after excluding the old portion and the car porch. In the return filed by the petitioner under Form II, the date of completion of the building was entered as 15.10.1999. No evidence was produced by the petitioner to substantiate his contention that the building was constructed prior to 01.04.1999. The finding in Ext.P5, of the building having been constructed prior to 01.04.1999, having not been challenged, had attained finality. The factual matrix being as above, I find no reason to invoke the extraordinary jurisdiction under Article 226 in the petitioner's favour.**
**In the result, the writ petition is dismissed. No order as to costs.**
**Sd/V.G.ARUN JUDGE**
**Scl/11.11**
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**EXT.P1 : TRUE COPY OF THE ASSESSMENT REGISTER MAINTAINED BY THE PALA MUNICIPALITY FOR THE PERIOD FROM 1-41995 ONWARDS.**
- **EXHIBIT P2 EXT.P2 : TRUE COPY OF THE SAID CERTIFICATE DT.22-5-2006 ISSUED BY THE PALA MUNICIPALITY.**
**EXHIBIT P3 EXT.P3 : TRUE COPY OF THE TAX RECEIPT DT.6-3-1997 FOR THE PERIOD 1996- ISSUED BY THE SECRETARY OF THE MUNICIPAL COUNCIL.**
**EXHIBIT P4 EXT.P4 : TRUE COPY OF THE QUOTATION SUBMITTED BY CONTRATOR SRI.SAJI THOMAS DT.21-4-1997.**
**EXHIBIT P5 EXT.P5 : TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR DT.8-9-2009 DISMISSING THE APPEAL.**
**EXHIBIT P6 EXT.P6 : TRUE COPY OF THE ORDER OF ASSESSMENT DT.19-3-2012 ISSUED BY THE TAHSILDAR.**
**EXHIBIT P7 EXT.P7 : TRUE COPY OF THE MEMORANDUM OF APPEAL BY THE PETITIONER DT.14-8-2012.**
**EXHIBIT P8 EXT.P8 : TRUE COPY OF THE ARGUMENT NOTE BY THE PETITIONER DT.14-8-2012. EXHIBIT P9 EXT.P9 : TRUE COPY OF THE PROCEEDINGS**
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## **W.P.(C) No.14847 of 2015**
**OF THE REVENUE DIVISIONAL OFFICER DT.16-1-2014.**
**EXHIBIT P10**
**EXT.P10 : TRUE COPY OF THE MEMORANDUM OF REVISION FILED BY THE PETITIONER DT.20-2-2014.**
**EXHIBIT P11**
**EXT.P11 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE CONTRACTOR DT.20-2-2014.**
**EXHIBIT P12**
**EXT.P12 : TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR DT.29-1-2015.**
