IMPORTANT POINT
An area under a trusswork that is not fully enclosed cannot be included in the plinth area for tax assessment under the Kerala Building Tax Act, 1975.

JUDGMENT :

(BECHU KURIAN THOMAS, J.)

Petitioners challenge an order of assessment dated 30.08.2022, assessing petitioners’ building to tax under the Kerala Building Tax Act, 1975.

2. Petitioners’ commercial building having an extent of 1328 sq.m, was subjected to an assessment on 01.01.2016 under Section 5 of the Kerala Building Tax, 1975 [for short, ‘the Act’] imposing an amount of Rs.6,01,200/-. The date of completion of the said building was shown as 28.10.2015. While so, on 06.05.2016, petitioners obtained permission to construct a trusswork over the roof of the building. After completion of the trusswork, Ext.P6 order of assessment was issued on 01.03.2018, imposing building tax of Rs.2,80,800/- due to the increase in the plinth area of the building on account of the trusswork. The total area was thus calculated as 2604.08 sq.m, including an addition of 1276.08 sq.m.

3. Petitioners challenged the order of assessment dated 01.03.2018 before this Court in W.P(C) No.9660/2018, pointing out the absence of any notice given to them before issuing the said order of assessment. Petitioners had also, in the meantime, preferred an appeal to the appellate authority, against the order of assessment dated 01.03.2018. By judgment dated 07.06.2018 in W.P(C) No. 9660/2018, the assessment order was set aside and a fresh consideration was directed. In the meantime, the appeal was taken up for consideration, and despite noticing the judgment of this Court in W.P.(C) No.9660/2018, the appellate authority confirmed the order of assessment. It is curious to note that the order of assessment dated 01.03.2018 which had already been set aside by this Court, was confirmed by the appellate authority, even after noticing that judgment. Petitioners were thus compelled to approach this Court once again, in W.P.(C) No.25557/2020, and by judgment dated 20.11.2020, the order of the appellate authority was set aside and the assessing officer was directed to consider the matter as directed in the judgment in W.P.(C) No.9660/2018.

4. Pursuant to the above direction, the assessing officer reconsidered the matter and issued the impugned order dated 30.08.2022, assessing petitioners’ building to tax under the Act calculating the plinth area as 2610.18 sq.m by including the area under the trusswork also as part of the plinth area. Without preferring any appeal, petitioners have approached this Court under Article 226 of the Constitution of India.

5. Petitioners contended that the area under the roof cannot be included in the plinth area and it cannot be subject to assessment under the Act as it is not fully enclosed. Petitioners have also claimed the benefit of levy of only 50% of the rate of tax for the building due to the rain water harvesting facility and solar panel installations provided on the building on the basis of Note (3) to Schedule I of the Act.

6. A counter affidavit has been filed by the third respondent, stating that the area under the trusswork is also liable to be taxed and further that petitioners are not entitled for any reduction in the rate of tax at 50% due to rain water harvesting facility and solar panel installations since the Government has not yet notified, the measurements and specifications in the Gazette.

7. I have heard Adv. Gini George, on behalf of Adv.Nirmal S., the learned counsel for the petitioners and Dr.Thushara James, the learned Senior Government Pleader.

8. The question that requires resolution is whether the assessment of building tax under the Act is liable to be interfered with or not. The contention raised by the petitioners regarding the entitlement for reduction in rate of tax at 50% on the basis of Note (3) to Schedule I of the Act, will arise only if there is any construction work carried out after installation of the solar panels. Concededly, petitioners carried out installation of the solar panels only on 10.08.2017 as per Ext.P11. The claim for benefit of reduced rate of tax based on the installation of the solar pan