IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WA.No. 1947 of 2011 ( ) ======================= AGAINST THE JUDGMENT IN WPC.26242/2011 DATED 14-10-2011 APPELLANT/PETITIONER: ===================== UMMARIAY KUTTY, W/O. CTP UNNIKKAMMU, THANDUPARAKKAL, KARAKKAPARAMBU ROAD, WANDOOR, MALAPPURAM DISTRICT PIN 679 328 BY ADV.SRI.P.SAMSUDIN RESPONDENTS/ RESPONDENTS: ========================== 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE REVENUE DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM 695 001 2. THE TAHSILDAR, NILAMBUR TALUK, NILAMBUR 679 329 3. THE DISTRICT COLLECTOR, MALAPPURAM 676 505 R1TO R3 BY GOVERNMENT PLEADERSMT. C.K. SHERIN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.N. RAMACHANDRAN NAIR, & K. VINOD CHANDRAN, JJ ---------------------------------------------------- W.A No. 1947 of 2011 ---------------------------------------------------- Dated this the 23rd day of December, 2011 J U D G M E N T C.N. Ramachandran Nair , J The appeal is filed against the judgment of the learned Single Judge declining to interfere with the levy and demand of luxury Tax under Section 5A of the Kerala Building Tax Act. The residential building was constructed by the appellant's husband which is in two floors. The building was assessed to Building Tax on the entire plinth area and the appellant's husband remitted the building tax. However, under a settlement deed appellant's husband transferred the first floor of the building to the appellant which is obviously to get over the liability for Luxury Tax which is payable under Section 5A of the Building Tax Act for residential buildings with plinth area above 278.7 Square Meters. Appellant's case is that she being the first floor owner of the residential building, liability for Luxury Tax has to be considered for both portions of the building separately and since each floor of the residential building separately does not have plinth area attracting W.A 1947/2011 : 2 : Luxury Tax, the assessment and levy on the appellant and her husband jointly is untenable. Challenge against the levy of Luxury Tax was turned down by the learned Single Judge against which writ appeal is filed. At admission stage Government Pleader took notice and got instruction from the Tahasildar and the appellant also confirmed that the building is a single residential building with internal stair case connecting the ground floor with the first floor. 2. We have heard the learned counsel for the appellant, Government Pleader for respondents and have gone through the annexures including the judgment of the learned Single Judge. 3. Luxury Tax under Section 5A of the Kerala Building Tax Act is payable for the residential building with reference to its plinth area. However, by transferring a portion of the building by the owner to his spouse or to any other persons, Luxury Tax liability cannot be avoided as the building by itself does not get separated into two residential buildings. If the building is inseparable, as is the case herein, because the W.A 1947/2011 : 3 : building is connected with internal stair case it is a single residential house when the two floors of the building are connected by an internal stair case it obviously reveals that the building is used as a whole by the occupants for their residence. Obviously,in our view the transfer is only to avoid the recurring liability of Luxury Tax which cannot be permitted under orders of this Court. Even though counsel for the appellant submitted that the appellant is willing to close the stair case to the up stair from the ground floor, we do not think by closure of the stair case, two floors of the building becomes two separate residential apartments. Of course, if first floor and ground floor are independent residential apartments with kitchen, living room, bed rooms contained in both the flats separated from each other then certainly the buildings are eligible for separate numbering and assessment. In this case, even though appellant has been able to get separate numbers for the ground floor and first floor, we feel the same itself is wrongly granted by the Municipal Authority. So long as the up stair is a part of the ground floor both W.A 1947/2011 : 4 : constitute one residential building. On the facts and circumstances of the case, in our opinion, there is no scope for separate assessment for ground floor and first floor whether it be for Building Tax or for Luxury Tax. We find no merit in this writ appeal and it is accordingly dismissed. Sd/- C.N. RAMACHANDRAN NAIR(Judge) Sd/ K. VINOD CHANDRAN(Judge) jma //true copy// P.A to judge