IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 WP(C).No. 5028 of 2011(C) ------------------------- PETITIONER(S): ------------------------ SATHEESH, AGED 45, S/O.SIVADASAN, UTHANATTU HOUSE, ('SREYAS'), CHATHARI, VYMEETHI ROAD, THRIPUNITHURA, NADAMA VILLAGE. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENT(S): ------------------------- 1. DISTRICT COLLECTOR, ERNAKULAM DISTRICT, PIN-682 030. 2. REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM-682 001. 3. TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 011. 4. VILLAGE OFFICER, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682 301. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM-695 001. R1 TO R5 BY GOVT. PLEADER MR.MATHEW GEORGE VADEKKEL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.5028 of 2011 ------------------------------------------- Dated this the 8th day of March, 2011 J U D G M E N T ---------------------- Challenge in this writ petition pertains to assessment of Luxury Tax under Section 5A of the Kerala Building Tax Act, 1975. The petitioner had constructed a building having three independent portions which are assigned with separate building numbers by the local authority. Out of the three buildings two are situated in the first floor and they are independent portions having separate entrances and bathrooms. It is also contended that the building contained in the ground floor is also separate having distinct entrance and enjoyment. It is further contended that he buildings are having separate Electric connections and it is leased out separately. Grievance of the petitioner is that for the purpose of assessment under Section 5A of the KBT Act the entire plinth area of all the buildings were reckoned together, under Ext.P8 order of the 3rd respondent Tahsildar. 2. Eventhough the petitioner had challenged the order of assessment in appeal and further in revision, the assessment was confirmed as per Ext.P10 and P12 orders, respectively. The appellate authority found that the building in question was built and used for residential purpose and the entire building is owned by the petitioner himself. Hence separate assessment could not W.P.(C).5028/11 -2- be granted. The revisional authority also found that the petitioner could not produce any documents to prove the claim for separate assessment, as contemplated under the second proviso to Section 2(e) of the KBT Act. 3. Learned Government Pleader appearing for the respondents points out a decision rendered by a Full Bench of this court in District Collector and others Vs. Sreekumari Kunjamma V.K. (2011 (1) ILR 13). It is held therein that a single building consisting of separate flats constructed by the same owner can be assessed only as one building for the purpose of assessment under the Building Tax Act, because the building in such case does not fall either within Explanation (1) or (2) of Section 2(e). It is held that going by the provisions of the statute a 'building' irrespective of number of flats or apartments contained therein, should be assessed as a single unit and the exceptions are only with respect to those stated in Explanation (1) and (2) of Section 2(e). It is further observed that unless the apartments are constructed by joint owners sharing the cost of construction of each and every apartment separately it will not fall within the explanation 2 and in such a case the building, irrespective of whether it contains more than one apartment, need be construed as a 'building' for the purpose of assessment under the statute. W.P.(C).5028/11 -3- 4. Going by the dictum laid by the Full Bench in the decision cited supra, it is evident that different part of the building constructed by the petitioner, eventhough having separate number and separate utility, can only be construed as a 'building' for the purpose of assessment under the provisions of the Building Tax Act. Under Section 5A Luxury Tax is leviable on any residential building having plinth area of 278.70 Sq:M: or more. The definition of “residential buildings” mentioned under Section 5A could not have any separate meaning or interpretation than the definition of 'building' defined under the said Act. 5. Therefore I am of the view that the dictum contained in the decision cited supra is squarely applicable in the case of the assessment under Section 5A also. Hence challenge against the assessment fails and the writ petition is liable to be dismissed. 6. However, learned counsel for petitioner points out that the assessment of Luxury Tax under Section 5A is to be made on an year to year basis and if the petitioner is transferring any one of the portion of the building, corresponding reduction in the plinth area has to be reckoned for the purpose of assessing Luxury Tax. Needless to say that it is left open to the petitioner to approach the assessing authority on any such event W.P.(C).5028/11 -4- raising objections against future assessments under Section 5A. 7. Learned counsel for the petitioner also seeks indulgence of this court in permitting time for payment of the arrears of tax demanded. I am of the view that indulgence can be shown in permitting the petitioner to make payment of the arrears of Luxury Tax due under Ext.P8 till 15.4.2011. The writ petition is dismissed subject to the above observations. C.K.ABDUL REHIM, JUDGE. okb