The petitioner constructed a residential house having a plinth area of approximately 250 Sq.metres after excluding the area covered by the car porch. The said building was assessed to building tax as well. Thereafter, by Ext. P1 notice dated 26-04-2002, the third respondent informed the petitioner of the proposal to levy luxury tax on the said building with effect from 1-4-1999. It is submitted that, thereafter, by Ext.P2 Revenue Recovery Notice dated 14-3-2008, the petitioner was sought to be proceeded against by the third respondent. He, thereupon preferred Ext. P3 representation dated 15-3-2008, pointing out that the building in question did not have the required area so as to attract the levy of luxury tax under Sec. 5A of the Building Tax Act, 1975 (hereinafter referred to as “the Act”). It would appear that thereafter, at the request of the 2nd respondent before whom Ext.P3 representation was submitted by the petitioner, the 3rd respondent forwarded a covering letter including a sketch of the building which would show that the total plinth area of the building, after excluding the car porch was only 261.51 Sq. metres. It is the case of the petitioner that in so far as Exts.P4 and P5 would clearly indicate that the plinth area of the building is less than the limit of 278.7 Sq. metres prescribed in Sec. 5A of the Act for the charge of luxury tax, there was no justification on the part of the respondents in proceeding against the petitioner for recovery of luxury tax in respect of the building constructed by him. In the Writ Petition, Ext.P2 revenue recovery notice is impugned. 2. A counter affidavit has been filed on behalf of the 3rd respondent wherein it is stated that subsequent to Ext.P1 notice issued to the petitioner, an order dated 14-5-2002 levying luxury tax was also served on the petitioner and it was when the petitioner did not effect payment pursuant to the said order, that revenue recovery proceedings were initiated against him through Ext. P2 notice. It is also pointed out that the petitioner had not filed any appeal in time against the order dated 14-5-2002, in terms of the Act.
3. I heard the learned Government Pleader. After considering the facts and circumstances of the case and also the submissions made across the Bar, I find that although pursuant to Ext.P1 notice, the respondents are stated to have served on the petitioner, an order levying luxury tax on the building of the petitioner, Exts.P4 and P5 would clearly reveal that the plinth area of the building, after excluding the area covered by the car porch was only 261.51 Sq. metres which was less than the plinth area 278.7 Sq. metres required for the purpose of charge of luxury tax. Even in the absence of a specific challenge by way of appeal against the order dated 14-5-2002 levying luxury tax on the petitioner, I have held in the decision reported in Namboorikandi Ahammed v. District Collector, Kozhikode and Others - 2014 (4) KHC 608 that the illegality of a levy of luxury tax can be set up as a defence by an assessee even in revenue recovery proceedings that are initiated against him. In that view of the matter, since it is not in dispute that the plinth area of the building is not such as to attract the levy of luxury tax under Sec. 5 A of the Kerala Building Tax Act, 1975, I am of the view that the revenue recovery proceedings initiated against the petitioner cannot be legally sustained. Accordingly, I quash Ext.P2 revenue recovery notice and declare that the petitioner is not liable to pay luxury tax in respect of the building put up by him which is shown to have a plinth area of only 261.51 Sq. metres in Ext.P4 communication of the 3rd respondent. It is made clear that if and when the petitioner puts up additional constructions, thereby enhancing the plinth area of the building to an extent beyond that prescribed under Sec. 5A of the Act, it will be open to the respondent to initiate proceedings for levy of luxury tax on the petitioner.
This Writ Petition is disposed as above.
Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE /true copy/
Ani/3/12/
P.S. to Judge