IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 30023 of 2006(Y) -------------------------- PETITIONER: ------------------- THOMAS, S/O. THOMAS BERNAD, AGED 45 YEARS, KUTTIYANIYIL HOUSE, MATTAYA, THRITHALA VILLAGE, OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, PALAKKAD. 2. THE SUB COLLECTOR, OTTAPALAM. 3. THE TAHSILDAR, OTTAPALAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI MATHEW VADAKKEL FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.30023/2006 APPENDIX PETITIONER'S EXTS: EXT.P1 PHOTOCOPY OF THE PLAN PREPARED IN RESPECT OF THE PETITIOER'S BUILDING. EXT.P2 PHOTOGRAPH OF THE PETITIONER'S BUILDING. EXT.P3 PHOTOCOPY OF THE ORDER K DIS-928/05/F DTD. 18/2/2006 PASSED BY THE 2ND RESPONDENT. EXT.P4 PHOTOCOPY OF THE REVISION PETITION FILED BEFORE THE IST RESPONDENT DTD. 3/2006. EXT.P5 PHOTOCOPY OF THE RECEIPT DTD. 8/3/2006 EVIDENCING PAYMENT OF LUXURY TAX FOR THE YEAR 2003-04. EXT.P6 PHOTOCOPY OF THE ORDER NO.B1/2006/12223/9 DTD. 19/10/2006 PASSED BY THE IST RESPONDENT. P.R.RAMAN, J. --------------------------- W.P.(C).NO.30023 OF 2006 ---------------------------- DATED THIS THE IST DAY OF SEPTEMBER,2008 JUDGMENT Petitioner is an assessee under the K.G.S.T. Act. The building consists of a ground floor, the plinth area of which was assessed as non-residential purpose. First floor was admittedly used for residential purpose. The roof of the 2nd floor with tin sheet is supported by iron pipes and is kept open on all the four sides. But even this area was included as residential building for the purpose of assessment of building tax. Subsequently, when luxury tax was imposed, petitioner raised a contention that the 2nd floor area under the cover of tin sheets is intended to be used for commercial purpose only and that separate ladders though provided for the ground floor as well as the first floor, it is actually used for non-residential purpose. True that earlier this area was assessed for building tax as residential purpose; but luxury tax being a separate tax as imposed under Section 5A, it is contended -2- W.P.(C).No.30023/2006 by the learned counsel for the petitioner that the fact that he did not file any appeal against the building tax by treating the 2nd floor as residential building, in no way affect his right to challenge the luxury tax, as it is a different tax. It is also contended that the area covered by the 2nd floor actually is not for convenient enjoyment of the residential portion of the building and therefore it cannot be treated as residential building. 2. The Appellate Authority and the Revisional Authority concurred with the finding of the Assessing Authority and rejected the contention. The learned counsel for the petitioner reiterated his contention before me. The learned Government Pleader on the other hand would support the order. 3. Heard both sides. 4. The word “residential building” is defined under Section 2(l) of the Kerala Building Tax Act. ''Residential building'' means a building or any other structure or part thereof built exclusively for residential purpose including out-houses or -3- W.P.(C).No.30023/2006 garages appurtenant to the building for more beneficial enjoyment of the main building but does not include hotels, boarding places, lodges, and the like. Therefore, going by the definition even a garage or an out-house pertaining to the building which are more for the beneficial enjoyment of the main building, will stand included in the definition clause. But under Section 5, the building tax has to be assessed only on the plinth area and Section 5(5) of the Act specifically provides that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any non-residential purpose shall not be added to the plinth area of that building. The rate of tax for both the residential and non-residential building is different as prescribed. The rate of tax for residential purpose (other buildings) is at lesser rate. At the time of assessment of the building for the purpose of building tax under Section 5, the area covered by the 2nd floor with tin sheet roofing was included in -4- W.P.(C).No.30023/2006 the total plinth area of the residential portion of the building and was assessed to tax. Thus the petitioner had an advantage of the 2nd floor being assessed as residential, as the rate of tax for residential building compared to non-residential building was less. Thereafter, when proceedings were initiated for levying of luxury tax under Section 5A of the same Act, he took up a different contention and urged that the 2nd floor should be treated as non-residential purpose. It is true that for the purpose of taxation every year the assessment is different and therefore there may not be any estoppal or res judicata in tax matters merely because the issue for the previous year is decided taking a different view altogether. But on a question of fact as to whether it is residential or non-residential, if the petitioner has not taken any advantage, necessarily that cannot in any way estop him from raising the contention that it is non-residential, when proceedings are taken under the Luxury Tax Act. For example, if the total plinth area in a case is assumed to be 300 sq. metres -5- W.P.(C).No.30023/2006 and as against the actual area of 100 sq. metres the mere fact that he paid tax will not be a bar when proceedings are taken for luxury tax to set up a contention disputing the extend, because he might have thought that being a one time payment of tax there was no need to fight a case for payment of building tax. But in a case like this the situation is different. He has taken an advantage of treating the area as residential building by inviting the authorities to assess the tax at a lesser rate. Therefore, unless there is any concrete evidence adduced by him to show that the area in question actually being used for non-residential purpose, the authorities are entitled to rely on the conduct of the party referred by the earlier proceedings. In this case except to say that it is intended to be used for non-residential purpose, he did not adduce any evidence to show that it was actually used for non- residential purpose. The only contention was that it is to prevent from leakage that the 2nd floor was put up with tin sheet roofing. The view taken by the authorities cannot in the circumstances be -6- W.P.(C).No.30023/2006 said to be perverse. True that the circular was issued by the Government to treat the area covered by canopy as the plinth area. Since we are interpreting the provision contained in the statute and there is a definition, it cannot be improved by the circular issued. But going by the definition when in the main building a portion is treated as non-residential and another portion as residential, the question arises as to whether the additional area is intended for the beneficial enjoyment of the residential portion or non-residential portion as the case may be, being a question of fact and in the absence of any evidence adduced discharging the burden to show that it is used for non- residential purposes, no interference is called for with the order passed. 5. In view of the circumstances, it has to be held that the view taken by the authority cannot be said to be wrong or illegal. There is no merit in this writ petition and the same is dismissed. 6. However, I make it clear that the luxury tax being a -7- W.P.(C).No.30023/2006 reckoning tax liability on the petitioner, if he is able to establish that actually the 2nd floor was used for non-residential purpose, the finding entered into above will not bind him to raise such contention in the subsequent year. P.R.RAMAN, Judge. kcv.