IMPORTANT POINT
Explanation II to Section 2(e) of Kerala Building Tax Act, 1975 has to be read harmoniously with proviso to Section 2(k) and Section 5A of the Act.

Judgment

Dipak Misra, J.

The respondent invoked the jurisdiction of the High Court of Kerala at Ernakulam under Article 226 of the Constitution assailing the demand of luxury tax imposed on a building that consists of 13 residential apartments. The Tahasildar who is the competent statutory authority under the Kerala Building Tax Act, 1975 (for brevity “the Act”) imposed luxury tax on the building on the base of Section 5A of the Act vide order dated 1.10.2003 in Ref B4-6435/03 whereby he had measured the plinth area of all the residential apartments and computed the tax treating the same as a singular building.

2. The learned Single Judge opined that the levy of luxury tax of the entire building on the owner was not permissible under the Act, for the scheme is to levy luxury tax for each residential apartment, plinth area of which is in excess of the limit provided under Section 5A of the Act. It has been further ruled by the learned Single Judge that if the plinth area of each residential apartment was below 278.7 sq. mts., there was no scope of levying luxury tax. And if the concerned Tahsildar had found that the plinth area of the residential apartments in toto was above 278.7 sq. metres, the luxury tax for such apartments could be demanded, the writ petition was disposed of with the direction that Tahsildar would verify the plinth area of each residential apartment and levy luxury tax only for such of the residential apartment plinth area of which was in excess of the limit provided under Section 5A of the Act. The relevant part of the opinion expressed by the learned Single Judge is reproduced below:-

“Even though petitioner is the owner of the entire building, luxury tax is leviable only if the plinth area of each residential apartment is in excess of the limit provided under Section 5A of the Kerala Building Tax Act. Tahsildar has demanded luxury tax by clubbing the plinth area of various residential apartments. This is not permissible under the Act and the scheme is to levy luxury tax for each residential apartment, plinth area of which is in excess of the limit provided under Section 5A of the Act. If plinth area of each residential apartment is below 278.7 sq. meters then there is no scope for levying luxury tax. However, if Tahsildar on inspection finds that the plinth area of any residential apartment is above 278.7 sq. metres, then he can demand luxury tax for such of the apartment or apartments.”

3. Being aggrieved by the aforesaid judgment and order passed by the learned Single Judge dated 12.06.2008 the State of Kerala and its functionaries preferred writ appeal No. 2150 of 2008. The Division Bench referred to Section 5A of the Act, dictionary clause contained in Section 2, especially, Section 2 (k) and the Explanation II to Clause (e) of Section 2 and came to hold that if there is one building having more than one floor and they are inter-connected with each other and if one floor is of no use without the existence of another floor, then it has to be considered as one building. The Division Bench further proceeded to state that as there were 13 independent flats or apartments and each of the building could be used on its own without reference to the other apartment, the question of taking the measurement of another building to calculate the plinth area would not arise. The conclusion recorded by the Division Bench reads as follows:-

“For the purpose of calculating the plinth area, if the intention of the legislature was to adopt the entire Explanation (2) to clause (e) even with reference to proviso to 2(k) there was no need to mention the aggregate area where a building has more than one floor. The very reference to more than one floor of a building would explicitly mean, if read along with the proviso that whether the building is a single unit so far as functional use is concerned, or separate units, so far as functional utility of the building. If there is one building having more than one floor and they are inte