An open area without a roof is not included in the plinth area for tax purposes under the Kerala Building Tax Act, affirming the statutory definitions.

JUDGMENT

The petitioner is the owner of a residential building, which is constructed as per the plan approved by the 5^th respondent Grama Panchayath. As per the said building permit and plan, which is produced as Ext.P1, the total plinth area of the building is 271.22 Sq.M.

2. However, when the said building was subjected to assessment under the provisions of the Kerala Building Tax Act, 1975 , by the 3^rd respondent, the said property was subjected to luxury tax by the 3^rd respondent by taking the total plinth area of the building as 344.18, as it was found that it exceeded the cieling of 278.7 Sq.M, contemplated under Section 5A of the Building Tax Act. The said assessment was challenged by the petitioner before the Revenue Divisional Officer and District Collector, and during the said process, the building was re- measured on several occasions. Ultimately, the total plinth area of the building was fixed as 280.33 Sq.M as evidenced by Ext.P5.

Since the said area is above the ceiling limit contemplated under Section 5A , the imposition of luxury tax for the building was confirmed. Even though the said measurement was challenged by approaching the 1^st respondent, the same was rejected as per Ext.P6. This writ petition is submitted by the petitioner challenging the said order, seeking a direction to the respondents to exempt the building from the payment of luxury tax.

3. A counter affidavit was filed by the 5th respondent, the Grama Panchayath, wherein it is averred that the total plinth area of the building excluding the car porch is 273.7 Sq.M.

4. I have heard Sri.N.L.Bitto, the learned counsel for the petitioner, Smt.Jasmine M.M, the learned Government Pleader for the respondents 1 to 4 and Sri.C.Harikumar, learned standing counsel for the 5^th respondent.

5. The only question that arises for consideration pertains to the plinth area assessed by the 3^rd respondents, which was confirmed by the other statutory authorities. The specific contention raised by the learned counsel for the petitioner is that, on the first floor of the building, there is an open area without any roof and the calculation of plinth area was carried out including the same as well. According to the petitioner, the said area should not have included in the plinth area, as the said area does not satisfy the definition of building. It is also the case of the petitioner that, if that area is excluded, the plinth area of the building would be below the celing contemplated under Section 5A and therefore, the petitioner would be exempted from payment of luxury tax. On the other hand, the learned Government Pleader opposed the said contention.

6. I have carefully gone though the records. It is true that in the counter affidavit submitted by the 5th respondent, it is asserted that the total plinth area of the building after excluding the car porch area is 273.70 Sq.M and therefore, it is below 278.7 Sq.M, i.e., the limit contemplated under Section 5A of the Kearla Building Tax Act. However, as rightly pointed out by the learned Government Pleader, the assessment of the plinth area made by the 5^th respondent and as averred in the counter affidavit filed by them, cannot be taken as the plinth area for the purpose of assessing the building tax. The manner in which the plinth area is to be calculated under the provisions of the Kerala Panchayath Building Rules and the Building Tax Act is different and therefore, the provisions in the Building Rules cannot be made applicable to the assessment of the building tax. The said position of law is settled against the petitioner as per the decision rendered by a Division Bench of this Court in Mohammed Ashraf v. State of Kerala [ 2018(1) KLT 40