J U D G M E N T

Dr. Kauser Edappagath, J.

The appellant preferred the writ petition challenging Exts.

P4, P6 and P10 assessment order, appellate order and revisional order passed by the assessing authority, appellate authority and revisional authority under the provisions of the Kerala Building Tax Act, 1975 (for short, the Act) in respect of the building owned by him.

2. In Ext.P4 assessment order, the plinth area of his residential building was determined as 300.49 m², and he was directed to pay building tax as well as luxury tax based on that plinth area. The luxury tax applies to residential buildings with a plinth area of above 278.7 sq. metres completed on or after the 1^st day of April 1999. According to the appellant, the assessing authority wrongly included the plinth area of a structure constructed by him adjacent to his residential house for the purpose of storing firewood and agricultural tools. It is alleged that if the plinth area of the said structure is excluded, the total plinth area would fall below 278.7 sq. metres and thus not amenable to luxury tax. The learned Single Judge dismissed the writ petition holding that all the statutory authorities concurrently found that the out-house constructed by the appellant is part of the main building and thus cannot be excluded from the plinth area of the residential building for the purpose of assessment of building tax and luxury tax. It is challenging the said judgment;

the appellant is before us.

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

4. 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. Sub-section (5) of Section 5 says that where there are out-houses, garages or other structures appurtenant to the building, for the more convenient enjoyment of the building, the plinth area of such structure shall be added on the plinth area of the main building for the purpose of assessment of the building tax. However, the proviso to the said sub-section says that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any other non-residential purpose shall not be added on the plinth area of the building. The plinth area of the out-house constructed by the appellant comes to 15.39 sq. metre, as evident from the Ext.P3 plan prepared by the Assistant Executive Engineer.

5. The definite case of the appellant is that he uses the out-house for storing firewood and agricultural tools. The assessing authority, the appellate authority as well as the revisional authority proceeded on the assumption that the out- house building, which is used for the beneficial enjoyment of the building, also can be included for calculating the total plinth area of the residential house as per Section 5(5) of the Act. However, none of these authorities considered whether the proviso to sub- section (5) would be applied to the out-house of the appellant's building. In short, the question of whether the out-house constructed by the appellant is used for storage of firewood and agricultural tools or for other non-residential purposes, as alleged by the appellant, has not been considered by any of the authorities. Hence, we are of the view that the impugned order, as well as Exts.P4, P6 and P10 orders, are not sustainable. They are, accordingly, set aside. The matter is remanded to the 2^nd respondent for fresh disposal. The 2^nd respondent shall conduct a physical inspection, either by himself or through his subordinate, of the residential building as well as the out-house in question and thereafter take a decision on whether the out-house has to be excluded from the plinth area of the residential building in terms of the proviso to sub-section (