Dismissed

Moideenkutty v. District Collector, Palakkad

Kerala HC10 Aug 2016WP(C)/12044/2015

Case brief

AI extract

What is this about?

The petitioner challenged an order imposing luxury tax on his building, arguing that separate door numbers and electric connections made each unit a separate building. The court held that Explanation 2 applies only when apartments are owned by different persons. Since the building was owned by a single individual, the entire structure constituted one building liable for luxury tax based on its tot

What did the court decide?

None; the writ petition challenging the order confirming the luxury tax demand was dismissed.

Moideenkutty Vs District Collector, Palakkad — 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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WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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WP(C).No. 12044 of 2015 (E)

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PETITIONER(S):

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MOIDEENKUTTY, 45 YEARS, S/O. PAREEKUTTY, AMMANATTUKUZHI HOUSE, KANAYAM POST, SHORNUR, REPRESENTED BY THE POWER OF ATTORNEY HOLDER MOHAMMEDALI, 46 YEARS, S/O. PAREEKUTTY,AMMANATTUKUZHI HOUSE, KANAYAM POST, SHORNUR

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BY ADV. SRI.R.SREEHARI

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RESPONDENT(S):

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1. DISTRICT COLLECTOR, PALAKKAD, CIVIL STATION, PALAKKAD-678 001.

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2. REVENUE DIVISIONAL OFFICER, OTTAPALAM- 679 101.

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3. TAHSILDAR, TALUK OFFICE, OTTAPALAM - 679 101.

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4. VILLAGE OFFICER, SHORNUR II VILLAGE, SHORNUR- 679 121.

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BY SENIOR GOVERNMENT PLEADER SRI.C.P.PRADEEP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 12044 of 2015 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT.P1- PHOTO COPY OF BUILDING TAX RECEIPT DT.28.03.2007 ISSUED BY SHORNUR MUNICIPALITY WITH RESPECT TO BUILDING NO.17/24C EXHIBIT.P2- -DO- -DO- 17/24D EXHIBIT.P3- DO- -DO- 17/24E EXHIBIT.P4- -DO- -DO- 17/24F EXHIBIT.P5- -DO- -DO- 17/24G EXHIBIT.P6- -DO- -DO- 17/24H EXHIBIT.P7- PHOTO COPY OF ELECTRICITY BILL DT.06.05.2010 WITH RESPECT TO CONSUMER NO.16076. EXHIBIT.P8- -DO- DT. 04.07.2009 -DO- 16077 EXHIBIT.P9- -DO- DT. 09.11.2010 -DO- NO.16078 EXHIBIT.P10- -DO- DT. " -DO- NO.16079 EXHIBIT.P11- -DO- DT. 06.05.2010 -DO- NO.16080 EXHIBIT.P12- -DO- DT. 06.07.2010 -DO- NO.16081 EXHIBIT.P13- PHOTO OF THE ORDER DATED 25-08-2011 OF THE 2ND RESPONDENT. EXHIBIT.P14- PHOTO COPY OF THE REVISION PETITION DT.25.02.2012 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT.P14 (A)- PHOTO COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION TO CONDONE THE DELAY EXHIBIT.P15- PHOTO COPY OF THE RECEIPT DT.17-03-2012 EVIDENCING PAYMENT OF LUXURY TAX. EXHIBIT.P16- PHOTO COPY OF THE ORDER DATED 15.11.2013 OF THE 1ST RESPONDENT.

Msv/

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WP(C).No. 12044 of 2015 (E)

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EXHIBIT.P17- PHOTO COPY OF JUDGMENT IN WPC NO.6066/2014 DT.10.10.2014 OF THIS HON'BLE COURT.

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EXHIBIT.P18- PHOTO COPY OF THE NOTICE DATED 08.12.2014 ISSUED BY THE FIRST RESPONDENT.

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EXHIBIT.P19- PHOTO COPY OF THE ORDER B1-2013/68342/9 DT.18.02.2015 OF THE 1ST RESPONDENT.

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RESPONDENT(S)' EXHIBITS:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

A.M. SHAFFIQUE, J.

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------------------------------------- W.P.(C) No. 12044 of 2015

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Dated this the 10^th day of August, 2016

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JUDGMENT

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Petitioner challenges Ext.P19, an order passed by the District Collector, confirming the demand for luxury tax.

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According to the petitioner, his apartment is having separate building number, which is separately assessed tax and has separate electric connection and therefore, each unit will have to be taken as a separate unit for the purpose of computing luxury tax under Section 5 (a) of the Kerala Building Tax Act, 1975. The authorities, however, had taken the entire building as a single unit and had called upon the petitioner to remit luxury tax.

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Counter affidavit has been filed by the first respondent inter alia supporting the stand taken in the matter. It is contended that the disputed building is having a plinth area of 325.08 M² and it is owned by a single person.

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W.P.(C) No. 12044 of 2015

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Having regard to the fact that the disputed building is owned by a single person and merely for the reason that the building is having six door numbers and have separate electric connection, will not be enable the petitioner to contend that the luxury tax is not payable. The liability to pay luxury tax under Section 5 A of the Act, which reads as under:

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“ 5A. Charge of luxury tax .- (1) Notwithstanding anything contained in this Act, there shall be charged a luxury tax of [four thousand rupees], annually on all residential buildings having a plinth area of 278.7 square metres or more and completed on or after the 1^st day of April, 1999.

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(2) The luxury tax assessed under this Act shall be paid in advance on or before the 31^st day of March, every year.].”

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The determination of plinth area is in terms of Section 6. Going by the aforesaid provision, it is rather clear that the plinth area for the purpose of the Act, has to be the plinth area of the building as specified in the plan approved by the local authority or such other authorities. The word 'building' is defined under Section 2(e) and Explanation 2 reads

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W.P.(C) No. 12044 of 2015

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-3-

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as under:

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“2(e) “building” means a house, outhouse, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.” xxxxx

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“Explanation 2:- Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building.”

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It is therefore clear that where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building. The aforesaid provision will not apply to the petitioner, so far as the petitioner is a single owner of the building.

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Under such circumstances, the challenge to Ext.P19 and

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W.P.(C) No. 12044 of 2015

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-4-

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the order of assessment cannot be sustained and hence this

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writ petition is dismissed.

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Sd/-

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A.M. SHAFFIQUE JUDGE

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Scl/10.08.2016

Moideenkutty v. District Collector, Palakkad

Case brief

What is this about?

What did the court decide?

Moideenkutty v. District Collector, Palakkad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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