The widely worded definition of 'building' under Section 2(5) of the Act includes enclosures or structures, covering the basement as a building liable to general tax.

ORDER

1. The question arising for decision in these appeals is the liability, for assessment of general tax under Section 132 of the Bombay Provincial Municipal Corporations Act, 1949 (the Act for short), of the basement situated at the bottom of multi-strayed building and meant for use as parking space.

2. The upper floors of the building i.e. the floors excepting the basement, have all been let out or sold separately. The parking space in the basement has been held to be a "building" liable to payment of general tax by the Assessing Authority of the Municipal Corporation. Appeals preferred under Section 406 of the Act were dismissed by the Court of Small Causes. In further appeals preferred to the High Court, under Section 411 of the Act, the High Court has upheld the liability of the basement to assessment and levy of tax but has partially varied the valuation in one of the appeals.

3. Section 132 of the Act which is the charging section provides for the general tax being levied in respect of all buildings and lands in the city, the rateable value whereof exceeds Rs 600. There are certain categories of buildings and lands exempted with which exemptions we are not concerned. The term "building" is defined by clause (5) of Section 2 of the Act as under:

"2. (5) building includes a house, outhouse, stable, shed, hut and other enclosure or structure, whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like;"

4. A perusal of the definition of the term "building" shows that the definition is widely worded. It includes within its ken even enclosures or structures whether of masonry, etc. or otherwise including compound walls. A basement situated at the bottom of the building though meant to be utilised as a parking space would definitely be covered by the definition of the term "building" and hence would be liable to general tax.

5. The plea of the appellants is that the availability of parking space in the basement has been taken into account while fixing the actual letting value of the upper portions of the building, and therefore, the assessment of basement as building would amount to double taxation on the same property. Before the High Court, the learned counsel for the Municipal Corporation very fairly and candidly stated that if the value of the parking space has been taken into account as a factor going into for determining the actual letting value of the upper portions of the building so as to enhance the same then the parking space situated in the basement shall not be liable to be assessed to tax separately and that will amount to double taxation. However, the learned counsel for the Municipal Corporation maintained before the High Court, as also before this Court, that factually no such double taxation was done, The High Court has found that there was no material available on record to hold that the value of the parking space was taken into consideration as a factor, going into valuation of other parts of the building and therefore the plea as to double taxation was not substantiated. On behalf of the appellants some affidavit was filed during the hearing of the appeals wherein it was stated that the gross annual rateable value of the shops and offices in the building should be "deemed to have been fixed after taking into account the market value of the property along with the facility of car parking and cycle parking in the basement-cum-cellar of the property". The High Court has opined that such an affidavit was merely guesswork of the deponent wherefrom it could not have been positively concluded that what was stated in the affidavit was a statement of actual fact. The plea raised by the appellants was held by the High Court not substantiated from the records available before the Assessing Authority or any of the appellate courts.