The imposition of luxury tax was found unsustainable due to improper assessment of the building's plinth area.

JUDGMENT

The petitioners have constructed a residential premises, and the imposition of luxury tax under the provisions of Section 5A of the Kerala Building Tax Act , 1975, is the challenge raised in this writ petition.

2. The petitioners contend that the residential building constructed as above was only having an area which is not assessable to luxury tax under the Statute. However, pursuant to Ext.P3, the Village Officer calculated the plinth area of the building as 282.42 m². Later, an enquiry report was also finalised by the village authorities, as evidenced by Ext.P4. In Ext.P4, a total deduction of 10.775 m² is advised. The break-up of the afore is as under:-

Double height – 2.55m2 Open sit out – 8.225m2 -------------------

Total – 10.775m2

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3. Later, one more enquiry was conducted leading to the

report at Ext.P5. The said report, apart from making mention about

the total extent of 10.775 m² as stated in Ext.P4, also has referred

to 4.32m², representing the area constructed as a pooja room with only two sides closed, to be excluded. However, the petitioners state that the assessment of the building tax has been finalised by Ext.P6 order, by calculating the plinth area of the building at 285.06 m². Though an appeal was preferred, the Revenue Divisional Officer having rejected the same, the petitioners filed a further revision to the District Collector. The District Collector also has rejected the same and the petitioners have approached this Court with the captioned writ petition.

4. I have heard Sri. Manu Ramachandran, the learned counsel for the petitioners, as well as Sri. Arun Chandy, the learned Government Pleader.

5. According to the learned counsel for the petitioners, even going by the findings contained in Ext.P10 order of the District Collector, the total extent of the construction is below the assessable limit.

6. The learned Government Pleader on the other hand sought to sustain the impugned proceedings, with reference to the ultimate observation made by the District Collector that even after reduction of the area as found in the enquiry report, the total plinth area is in excess of the assessable limit.

7. I have considered the rival submissions as well as the impugned orders.

8. A reference to the order at Ext.P10 would show that even according to the District Collector, the following area requires to be reduced from the plinth area:-

i. Staircase open area (01.35M X 1.55 M) = 2.09 m2 ii. Open terrace stated to have been constructed as the pooja room (01.63M X 02.7 M) = 4.40m2 Total = 6.49m2

9. Therefore, from the total area brought to tax as evidenced by the assessment order at Ext.P6, if the afore area as noticed by the District Collector is reduced, there is no dispute about the fact that the plinth area of the residential building is below the assessable limit.

10. However, while passing the impugned order at Ext.P10, the District Collector has not carried out the afore deduction from the total plinth area, even after observing that the afore area requires to be reduced. This Court also notices that even according to the District Collector, periodical inspection requires to be carried out in the residential premises of the petitioner to ensure that subsequent variation with respect to the open area used as the pooja room is not being made by the petitioner.

In the light of the afore, I am of the opinion that the demand of luxury tax from the petitioner cannot be sustained. Therefore, this writ petition would stand allowed, setting aside the assessment order at Ext.P6, as confirmed by the Revenue Divisional Officer and the District Collector pursuant to Exts.P8 and P10 orders. It is made clear that the reven