JUDGMENT :

Kauser Edappagath, J.

The appellant, the petitioner in WP(C) No.33329/2023, challenges the assessment of building tax and luxury tax under Sections 5 and 5A of the Kerala Building Tax Act, 1975 (for short, 'the Act') in respect of the building owned by him having separate units with different door numbers as a single unit instead of assessing separately.

2. The appellant, the title holder of the immovable property having an extent of 8.81 Ares comprised in Old Sy. No.685/3A of Vattekunnamkara, Thrikkakkara North Village, entered into a joint venture agreement with Tulsi Developers India Pvt. Ltd. to construct a multi-storied apartment complex. The company formulated a scheme for developing the property by constructing an apartment complex with 11 floors named “Tulsi Nest”, consisting of 36 residential apartments as per the building permit issued by Kalamassery Municipality. The construction of the apartment complex was carried out and completed in terms of the memorandum of understanding dated 10/3/2016 executed between the appellant and the company. As per the understanding, 11 apartments were set apart in favour of the appellant. Accordingly, after construction, those 11 apartments were allotted to the appellant, and he paid property tax in respect of those apartments. Separate building numbers were also allotted to each apartment. According to the appellant, he sold 1 apartment out of 11 bearing door No.XXXIX/196-K situated on the basement floor to one Asma Assis on 5/11/2022.

3. The appellant submitted a return in Form No.II as contemplated under the Act for assessment of the individual 1st apartments for building tax separately. However, the respondent assessed all the 11 apartments belonging to the appellant together for the purpose of building tax and luxury tax under Sections 5 and 5A of the Act. The 1st respondent issued Ext.P7 order imposing a building tax of Rs.3,40,515/-and an additional cess of Rs.6,810/-. The 1st respondent also issued Ext.P9 order imposing luxury tax @ Rs.12,500/-each financial year. The appellant challenged Exts.P7 and P9 before the learned Single Judge on the ground that the 1st respondent ought to have considered the residential apartments in the name of the appellant as separate units by applying the provision of Explanation 2 to Section 2(e) of the Act. The learned Single Judge dismissed the writ petition, holding that if a person is the owner of more than one apartment in a building, then the plinth area of all the apartments is to be taken together for the purpose of levying building tax and luxury tax. Being aggrieved by the judgment of the learned Single Judge, the appellant is before us.

4. We have heard Smt.R.Ranjanie, the learned counsel for the appellant and Sri.V.K.Shamsudeen, the learned Senior Government Pleader for the respondents.

5. The learned counsel for the appellant submitted that the apartments owned by the appellant are independent units, separate from each other and as such, each apartment ought to have been assessed as a separate building for the purpose of Section 5 and Section 5A of the Act by applying Explanation 2 to Section 2(e) of the Act. It was also contended that if the assessment is made separately for each unit, the question of attracting luxury tax as envisaged under Section 5A of the Act will not arise since the plinth area of the individual apartment unit is less than 278.7 sq. metres. On the other hand, the learned Government Pleader submitted that the assessing authority was absolutely justified in taking all the 11 flats owned by the appellant together for the purpose of assessing building tax and luxury tax. Reliance was placed on the dictum laid down by the Apex Court in State of Kerala and Others v. A.P. Mammikutty [2015 (3) KHC 794 (SC)].

6. It is not in dispute that the appellant owns 11 apartments in the apartment complex 'Tulsi Nest' together with rights in 11 covered car parking areas, common areas, facilities, and amenities. The total plin