The plinth area for assessment under the Kerala Building Tax Act, 1975, includes any structure appurtenant to the building used for more convenient enjoyment of the building.

Headnote:
Building Tax Act - Assessment of Plinth Area - Exclusion of Terrace Structure - The court dismissed the appeal challenging the assessment order, holding that the structure constructed on the terrace of the building could be used for residential purposes and is used for the more convenient enjoyment of the main building, thus forming part of the plinth area for the purpose of assessment under the Act.
Fact of the Case:

The appellant challenged the assessment order, appellate order, and revisional order passed under the provisions of the Kerala Building Tax Act, 1975, regarding the assessment of a residential building constructed by him in 2018. The appellant contended that the plinth area of the building was incorrectly assessed, as the area of the landing roof constructed by him over the building for drying clothes and rainwater harvesting was illegally added to the total plinth area.
Finding of the Court:

The court found that the structure constructed on the terrace of the building could be used for residential purposes and is used for the more convenient enjoyment of the main building, thus forming part of the plinth area for the purpose of assessment under the Act. The court dismissed the appeal, holding that the disputed question of fact cannot be adjudicated in the exercise of jurisdiction vested with the Court under Article 226 of the Constitution of India.
Issues: Assessment of plinth area for building tax and luxury tax under the Kerala Building Tax Act, 1975, and the exclusion of the structure constructed on the terrace of the building from the plinth area.
Ratio Decidendi: The plinth area for the purpose of assessment under the Act includes any structure appurtenant to the building used for more convenient enjoyment of the building. If a structure constructed on the terrace of a building can be used for residential purposes and is used for the more convenient enjoyment of the main building, it forms part of the plinth area for assessment under the Act.
Final Decision: The appeal was dismissed, and the court upheld the assessment order, holding that the structure constructed on the terrace of the building formed part of the plinth area for the purpose of assessment under the Act.

J U D G M E N T

Dr. Kauser Edappagath, J.

The appellant preferred the writ petition challenging the assessment order, the appellate order and the revisional order passed under the provisions of the Kerala Building Tax Act, 1975 (for short, 'the Act') in respect of the building belonging to him.

2. The appellant constructed a residential building on his property in the year 2018. The assessing authority/the 6th respondent assessed the building of the appellant to building tax and luxury tax under Sections 5 and 5A of the Act as per Ext.P3 order. The appellant was directed to pay `56,400/- as the building tax and `1,128/- as cess. The said amount was arrived at by reckoning the plinth area of the building at 443.14 m2. According to the appellant, the total plinth area of the building would come to 236.68 m2 only, and the 6th respondent illegally added an area of the landing roof constructed by him over the building for drying clothes and for rainwater harvesting. It is his case that the said area has to be excluded from the total plinth area. Though the appellant challenged the assessment order before the appellate and revisional authority, the appeal and the revision were dismissed as per Exts.P9 and P12 orders. The appellant was directed to pay luxury tax as well since the total plinth area of the building is more than 278.7 sq. metres. The appellant challenged Exts.P3, P9 and P12 before the learned Single Judge. The learned Single Judge dismissed the writ petition as per the judgment dated 20/2/2024. It is challenging the said judgment; the appellant is before us.

3. We have heard Sri.Ranjith Narayanan, the learned counsel for the appellant and Sri.V.K.Shamsudheen, the learned Senior Government Pleader.

4. The learned counsel for the appellant submitted that the construction made by him on the terrace of the building was not put for any residential purpose, and hence, the same is liable to be excluded from the plinth area for the purpose of assessment of building tax and luxury tax under the Act. The learned counsel placed reliance on the decision of a Single Bench of this Court in John Mathew v. Tahsildar (2018 (1) KLT 974) in support of his submission.

Section 5 of the Act deals with the charge of building tax, whereas Section 5A deals with the charge of luxury tax. Under both these provisions, the building tax, or the luxury tax, is charged based on the plinth area of the building. The luxury tax applies to luxury buildings with a plinth area of above 278.7 sq. metre completed on or after the 1st day of April 1999. “Building”, as defined under Section 2(e), covers all the buildings in the literal sense, and besides it, it includes every structure or part of the building. The plinth area, which is the basis of assessment defined under Section 2(k), takes in the floor area of the building. Section 6 deals with the determination of the plinth area. It says that the plinth area of the building shall be the plinth area specified in the plan, approved by the local authority, and verified by the assessing authority. The proviso to the said section says that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose shall not be taken into account for determining the plinth area of the building. Thus, what is excluded is any erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose. The appellant has not adduced any material that would unambiguously suggest that the structure he constructed on the terrace of the building is used for the storage of firewood or for any non-residential purpose. Sub-section (5) of Section 5 of the Act says that the plinth area of any structure appurtenant to the building used for more convenient enjoyment of the building shall be added on the plinth area of the main building for the purpose of assessment of building tax. The dictum lai

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