The petitioner is before this Court challenging Exhibit P5 order of the appellate authority under the Kerala Building Tax Act on the ground of delay in filing the appeal. The facts leading to Exhibit P5 order is that the petitioner's building having a plinth area of 386.94 sq.m. was assessed under the Building Tax Act by Exhibit P3. While making the said assessment, the assessing officer also assessed luxury tax for the years 2004-05 to 2006-07, the building being covered under Section 5A of the Act. The petitioner filed a belated appeal, after about 10 months, and the appellate authority by Exhibit P5 order dismissed the same on the ground of delay.
2. The petitioner would urge before this Court that his building was one constructed in the year 1968 and that Exhibit P1 series and also Exhibit P2 would clearly indicate the same. However, I am afraid, no such assumption can be made from Exhibit P1 series or Exhibit P2. Exhibit P1 and P1(a) are tax receipts issued by the local authority, which is not the competent authority to make an assessment under the Building Tax Act. Exhibit P2 certificate is one issued by a Secretary of the Grama WP(C).No.12088 of 2008-L
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Panchayat, stating that the building of the petitioner has been assessed before 1981-82. It is not clear as to what validity can be attached to Exhibit P2 certificate. In any event, Exhibit P2 again cannot be with respect to building tax assessment, since, as noticed above, the local authority has no authority under the Building Tax Act. On facts also, Exhibits P1, P1(a) and P2 does not establish the completion of the building in 1968, as is claimed by the petitioner. In such circumstances, this Court cannot arrive at a finding on the documents available on record that the building was actually constructed before the Building Tax Act came into force.
3. The petitioner, however, has a contention that Section 5A was introduced in the year 1999 and the assessment under the provision cannot be made for a building which was constructed earlier. Again it is not evident from the documents available on record as to when the building was constructed or the plinth area of the building that was constructed in the year 1968 as also the fact of any additional construction having been made thereafter. The petitioner, according to me, cannot raise any such contention before this Court, since he has not availed of the alternate remedy within the stipulated time. The petitioner's counsel, however, would contend that Exhibit P4 appeal was filed WP(C).No.12088 of 2008-L
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with a petition for condonation of delay and though the appellate authority dismissed the same, this Court has amble powers under Article 226 of the Constitution to restore the appeal and direct consideration of the same on merits.
4. The learned Special Government Pleader (Taxes) brings to my notice the Division Bench decision of this Court reported in Asst. Commr. of Central Excise v. Krishna Poduval [2005 (4) KLT 947], wherein it was declared that when a statute prescribes a period of limitation as also the period during which the appellate authority has power to condone the delay, the remedies come to an end as just in the case of time barred suit on the expiry of the time prescribed and the further time permitted for delay condonation. The Division Bench has categorically held that in such cases, the discretionary remedy under Article 226 of the Constitution cannot resurrect unenforceable cause of action however harsh the effect of the provisions may be on an assessee or litigant. Respectfully following the above decision, I dismiss the writ petition, however, with no order as to costs.
5. In view of the fact that the writ petition was pending from the year 2008 and there is an order of interim stay against collection of tax, I deem it fit that the petitioner can be granted six WP(C).No.12088 of 2008-L
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monthly instalments to make the payment. Needless to say that luxury tax assessment is a recurring cause of action and, therefore, the petitioner can raise his contentions before the appropriate authority regarding exclusion of his building under the Act, in any future years. For the previous years, however, there cannot be any revision and if at all the competent authority allows the claim of the assessee for a future year, it will not upset the levy and collection for the previous years.
Sd/-
K.Vinod Chandran, Judge.
vku/-
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