The judgment establishes that only usable area within the building should be assessed for luxury tax, excluding the thickness of walls as per the definition in the Kerala Building Tax Act.

JUDGMENT

These writ petitions have been filed by the respective petitioners, seeking to challenge the demand of luxury tax under the provisions of the Kerala Building Tax Act, 1975 (for short, ‘the Act’). With respect to the petitioner in W.P.(C) No.12449 of 2017, there is no dispute with respect to the area adopted for the assessment – 279.98 m² as per the assessment order and as regards the petitioner in W.P.(C) No.7911 of 2018 – the area adopted is 279.59 m², as per the orders of revision passed by the revisional authority.

2. The petitioners in these writ petitions contend that as per the building permits, the area was below the threshold limit under the provisions of the Act, entitling the assessing authority to pass an order of assessment. However, when the assessing authority issued the impugned orders, the area had been adopted as noticed earlier, slightly above the limit, and the petitioners were made to pay the luxury tax.

3. Sri.Manu Sankar, the learned counsel representing Sri.Jacob P.Alex, the learned counsel for the petitioners, would contend that, with reference to the provisions of the Act, only the “usable area” within the “floor” of the building can be assessed to tax. He would seek to rely on the definition of the term “plinth area” under Section 2 (k) of the Act in that regard. He would also contend with reference to the provisions of Section 6 of the Act, as amended with effect from 2024, to contend that the reference can only be made to the area as certified by the Local Self Government Institutions.

4. Per contra, Sri.V.K.Shamsudheen, the learned Senior Government Pleader would seek to rely on the judgment in W.P.(C) Nos.14831 of 2015, 9422 of 2017 and Philip Philip A. v. District Collector, Ernakulam and Others [2017 (1) KLT 578], to contend that there cannot be any exclusion as claimed by the petitioners and the measurement of “carpet area” cannot be had with reference to an assessment under the provisions of the Act.

5. I have considered the rival contentions as well as the connected records.

6. There is no dispute about the fact that, if the area as originally permitted by the local authorities is adopted, there cannot be any assessment against the petitioners. It is the contention of the petitioners that the assessing authority under the Act, by carrying out a fresh measurement, has also sought to include the thickness of the walls. In this regard, I notice the provisions of Section 2 (k) of the Act, which reads as under;

“2(k) "plinth area" means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floors together.”

7. A reading of the afore provision would show that the term “plinth area” would include the “floor of a building”, and where a building has more than one floor, the aggregate area included in all the floors put together. When the provision of the afore definition is considered, there cannot be any dispute that it can only be the usable area within the floors of the building that can be included for the purpose of assessment. In the case at hand, the petitioners contend that while carrying out the measurement of the building, the assessing authority – Tahsildar has also sought to include the thickness of the outer walls, and that is why the area has excluded the threshold limit. I am of the opinion that if, as contended by the petitioner, the thickness of the outer walls is also taken into account, the said area has to be excluded. This is because Section 2 (k), extracted above, only includes the floor of the building. The thickness of the outer wall cannot be taken for the purpose of calc