Dismissed

Abraham.v.a. v. the Tahsildar,Kanayannoor Taluk & Ors.

Kerala HC13 Jun 2016WP(C)/1010/2011

Case brief

AI extract

What is this about?

The court considered a writ petition challenging luxury tax demands issued under the Kerala Building Tax Act regarding additional building constructions. Relying on a prior Full Bench decision covering the exact legal proposition, the court held no further analysis was needed and dismissed the petition.

What did the court decide?

No relief granted; the writ petition challenging the luxury tax demand was dismissed.

Abraham.v.a. Vs the Tahsildar,Kanayannoor Taluk & Ors. — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938

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WP(C).No. 1010 of 2011 (A)

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PETITIONER(S) :

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V.A.ABRAHAM,

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PLOT NO. 69, SUBASH NAGAR, EDAPALLY, KOCHI-24.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENT(S) :

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1. THE TAHSILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM, KOCHI-682 011.

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2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI-682 001.

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3. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, KOCHI-682 030.

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BY GOVERNMENT PLEADER SRI. BOBBY JOHN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 1010 of 2011 (A)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF CERTIFICATE ISSUED BY THE ERNAKULAM CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY TO THE PETITIONER.

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EXHIBIT P2: TRUE COPY OF OCCUPANCY CERTIFICATE DATED 03.01.2004 ISSUED BY THE CORPORATION OF COCHIN.

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EXHIBIT P3: TRUE COPY OF PROCEEDINGS DATED 04.05.2005 OF THE 1ST RESPONDENT.

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EXHIBIT P4: TRUE COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER.

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EXHIBIT P5: TRUE COPY OF LETTER DATED 21.06.2009 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P6: TRUE COPY OF REPLY DATED 23.07.2009 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT P7: TRUE COPY OF LETTER DATED 29.04.2010 FROM THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P8: TRUE COPY OF LETTER DATED 07.12.2010 RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

A.M. SHAFFIQUE, J.

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============= W.P. (C) No. 1010 of 2011

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===================

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Dated this, the 13^th day of June, 2016

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J U D G M E N T

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This writ petition has been filed challenging Exts.P3, P5 and P8 by which the authorities under the Kerala Building Tax Act, 1975 had called upon the petitioner to pay luxury tax after making assessment of the building. The revisional authority did not entertain the revision on the ground that appeal is the remedy. Petitioner submits that the petitioner is not liable to pay luxury tax in terms of Section 5A of the Kerala Building Tax Act as the petitioner had made only additional constructions to the building.

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Counter affidavit had been filed by the 3^rd respondent supporting the stand taken by the assessing authority. According to them, if additional constructions are made, the building is liable to be assessed for building tax as well as luxury tax.

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The issue projected by the petitioner is covered by the judgment of this Court in State of Kerala and Others v. Moilakariyath Abdullla [2012 (1) KHC 43 (FB)], wherein, after

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W.P(C) No.1010/2011

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-:2:-

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considering the entire issue, this Court held at para 6 as under;

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“Going by the above scheme of levy of tax on constructed buildings and periodical revision of building tax as and when additions or modifications of the existing building are made, we feel the same scheme applies to luxury tax as well. The liability for luxury tax is on residential buildings with plinth area of 278.7 sq.ms. or more, the construction of which are completed after 01/4/1999. So much so, if any modification is made to an existing residential building after 01/4/1999 leading to increase in plinth area reaching 278.7 sq.ms. or more, the building will attract luxury tax under Section 5A of the Act. Section 5A does not authorise independent assessment of additional plinth area constructed to a residential building after 01/4/1999 for the purpose of luxury tax alone. So much so, in our view, the judgment of the Division Bench above referred declaring the liability for luxury tax for extensions made to residential buildings after 01/4/1999 only if such additions exceed the limit of plinth area provided under Section 5A is against the statutory scheme of levy of luxury tax. In fact, the statute does not visualise separate treatment of existing or already completed constructions and additions made to such buildings. A residential building remains the same and should be treated only as one building, no matter modifications or additions are made periodically leading to extension of plinth area. Since the assessment is only on building

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W.P(C) No.1010/2011

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-:3:-

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constructed, reconstructed or modified with extension, luxury tax has to be considered with reference to the total plinth area of the building with the additions. So much so, there is no scope for considering liability for luxury tax with reference to the additional plinth area constructed after 01/4/1999 as held by the Division Bench. We, therefore, hold that Section 5A applies to residential buildings, the plinth area of which after extensions or additions made after 01/4/1999 reach or exceed 278.7 sq.ms. In other words, for the purpose of levy of luxury tax plinth area of the building as a whole has to be considered with the additions or extensions made after 01/4/1999. We, therefore, hold that the view expressed by the Division Bench in the above judgment is not correct and accordingly, we overrule the above referred Division Bench judgment.”

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Having regard to the aforesaid proposition of law, I do not think that any further grievance is to be considered in this writ petition. The contentions urged by the petitioner is very well covered by the aforesaid judgment.

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Writ petition is, hence, dismissed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Rp13/06/2016

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//True Copy//

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P.S to Judge

Abraham.v.a. v. the Tahsildar,Kanayannoor Taluk & Ors.

Case brief

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Abraham.v.a. v. the Tahsildar,Kanayannoor Taluk & Ors.

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