Quashed

Santhamma Abraham v. State of Kerala

Kerala HC4 Aug 2023WP(C)/8851/2018

Case brief

AI extract

What is this about?

The High Court set aside an assessment order that imposed building tax on the entire plinth area of a pre-1992 structure, holding that tax on pre-appointed buildings applies only to additional areas resulting from major repairs or improvements made after the appointed date.

What did the court decide?

Impugned assessment order and notices set aside; matter remanded to assessing authority to pass fresh orders specifying additional plinth area within one month.

Santhamma Abraham Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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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 DINESH KUMAR SINGH

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FRIDAY, THE 4^TH DAY OF AUGUST 2023 / 13TH SRAVANA, 1945

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WP(C) NO. 8851 OF 2018

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PETITIONER/S:

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SANTHAMMA ABRAHAM, W/O LATE. P.C ABRAHAM, THEKKETHATTIL,KEEZHUKUNNU, KOTTAYAM.

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BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP; SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM. 695001.

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2 DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM.-686002.

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3 REVENUE DIVISIONAL OFFICER KOTTAYAM- 686001.

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4 TAHSILDAR, TALUK OFFICE, KOTTAYAM-686001.

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BY GOVERNMENT PLEADER RASMITHA RAMACHANDRAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.8851/2018

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J U D G M E N T

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Heard Mr George Varghese learned Counsel for the

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petitioner and Ms Rasmitha Ramachandran learned

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Government Pleader for the respondents.

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The present writ petition under Article 226 of the Constitution of India is filed impugning Exts.P6, P7 and P8. Ext.P6 is the assessment order dated 30.01.2018 assessing Rs.34,800/- as the building tax on the petitioner’s building. The demand notice (Ext.P7) of the same date for the said amount as well as demand luxury tax (Ext.P8) for three years 2016-17, 2017-18 and 2018-19 @ Rs.4,000/- per year.

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The learned Counsel for the petitioner submits that

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the building of the petitioner was constructed way back in the

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year 1932. Some additions were made in the year 1966. Thereafter some improvements/renovations were carried out

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W.P.(C) No.8851/2018

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in the year 2016. Under the Kerala Building Tax Act, the buildings constructed before 10.02.1992, i.e., the appointed date, are not liable to be taxed except as provided under Section 5 of the said Act.

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3.1 Learned Counsel further submits that even if some improvements have been carried out in the year 2016, after the appointed date, the plinth area of such improvement or additions is liable to be taxed under the provisions of the Kerala Building Tax Act. In the present case, the assessing authority, i.e., the Tahsildar, has imposed the tax on the entire plinth area of the building, which is 354.725 sq m, and the said building was constructed, as mentioned above, in the year 1932. Even if it is assumed that some constructions or additions have been carried out or made in the year 2016, only the area of addition/improvement is liable to be taxed.

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3.2 Learned Counsel for the petitioner further submits

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W.P.(C) No.8851/2018

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that the impugned order does not give any detail of the area of the additions/improvements. On the entire plinth area of 354.725 sq m the tax has been assessed, and demand has been raised for an amount of Rs.34,800/-.

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Ms Rasmitha Ramachandran learned Government

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Pleader does not dispute the legal position. However, she submits that the issue involved in the present writ petition is factual in nature. What improvements have been carried out and what is the added area to the building can be verified by inspecting the building. However, she does not dispute that the impugned assessment order does not disclose the area which has been added or improved after the appointed day on which the petitioner is liable to pay the tax.

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I have considered the submissions. Section 5 of the Kerala Building Tax Act is the charging section. On reproduction, Section 5 of the Kerala Building Tax Act reads as

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W.P.(C) No.8851/2018

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under:

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5. Charge of building tax. (1) Subject to the other provisions contained in this Act there shall be charged a tax (hereinafter referred to as "building tax") based on the plinth area at the rate specified in the Schedule-l on every building the construction of which is completed on or after the appointed day.

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(1A) in the case of green building as defined in clause (xviiia) of Section 2 of the Kerala Panchayat Raj Act 1994 (13 of 1994) and clause (18a) of Section 2 of the Kerala Municipality Act 1994 (20 of 1994) the building tax shall be levied at the rate of fifty per cent of the rate of building tax as specified in Schedule 1.

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(2) In the case of any building, the construction of which is completed prior to the appointed day but the assessment of which has not been initiated or completed or against which appeal or revision has been filed, building tax shall be assessed on the basis of the plinth area at the rate specified in the Schedule.

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(3) Where any major repair or improvement is made on or after the appointed day to a building constructed before the said date building tax shall be payable at the rate referred to in sub-section (1) on the additional plinth area of the building resulting from such repair or improvement.

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W.P.(C) No.8851/2018

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(4) Where the plinth area of the building, the construction of which is completed after the appointed day is subsequently increased by new extensions or major repair or improvement, building tax shall be computed on the total plinth area of the building including that of the new extension or repair or improvement and credit shall be given to the tax already levied and collected, if any, in respect of the building before such extension, or repair or improvement.

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(5) Where there are out-houses, garages or other structures appurtenant to the building for the more convenient enjoyment of the building, the plinth area of such structure shall be added on the plinth area of the main building and the building tax assessed accordingly:

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Provided that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for any non-residential purpose shall not be added on the plinth area of that building. (6) The building tax shall be payable by the owner of the building.

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Explanation. For the purposes of this Act, the construction of a building shall be deemed to have been completed when it is ready for occupation or has been actually occupied, whichever is earlier.”

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From a mere perusal of sub-section (3) of Section 5,

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it is evident that tax can be levied where any major repair or improvement is made to the building constructed before the appointed day, that too on the additional plinth area of the building resulting from such repair /improvement. Therefore, the tax on the buildings which are originally constructed before the appointed day will get attracted only additions/ improvements on the plinth area, which has been added as a result of addition or improvement and not the entire plinth area of the building.

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6.1 Prima facie , I find that the assessing authority has levied tax on the entire plinth area of the petitioner’s building. No detail of the addition/improvement of the plinth area has been mentioned. In view thereof, I find that the impugned assessment order and notices are not sustainable and are set aside. The matter is remanded back to the assessing authority to pass fresh orders, giving details of the additions in the

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plinth area as a result of significant improvement, if any, in the year 2016 or before the appointed date. The petitioner is directed to cooperate with the assessment proceedings. The assessing authority may inspect the building or call for a report from the competent officer to pass fresh orders. Fresh orders will be passed within a period of one month from today.

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Sd/-

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DINESH KUMAR SINGH JUDGE

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jjj

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W.P.(C) No.8851/2018

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APPENDIX OF WP(C) 8851/2018

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PETITIONER EXHIBITS
EXHIBIT P1	TRUE COPIES OF PROPERTY TAX RECEIPTS OF THE BUILDING ISSUED FROM KOTTAYAM MUNICIPALITY.
EXHIBIT P2	A TRUE COPY OF THE PERMIT DATED 06.01.1967 ISSUED BY MUNICIPAL COMMISSIONER KOTTAYAM.
EXHIBIT P3	A TRUE COPY STATEMENT SUBMITTED BY THE HUSBAND OF THE PETITIONER BEFORE MUNICIPAL COMMISSIONER KOTTAYAM DURING JUNE 1981.
EXHIBIT P4	A TRUE COPY OF CERTIFICATE NO.R1-31469/16 DATED 15.12.2016 FROM KOTTAYAM MUNICIPALITY.
EXHIBIT P5	A TRUE COPY OF THE OBJECTION DATED 19.11.2016 WAS SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P6	A TRUE COPY OF THE ORDER OF ASSESSMENT NO.D4- 14768/16 DATED 30.01.2018 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P7	A TRUE COPY NOTICE OF DEMAND NO.D4-14768/16 DATED 30.01.2018 ISSUED BY 4TH RESPONDENT.
EXHIBIT P8	A TRUE COPY OF LUXURY TAX ASSESSMENT MADE IN PROCEEDINGS NO.D4-14768/16 DATED 30.01.2018.
EXHIBIT P9	A TRUE COPY OF THE JUDGMENT REPORTED AS SHIRLY V. STATE OF KERALA REPORTED AS 2003(2) KLT 306.
EXHIBIT P10	A TRUE COPY OF THE JUDGMENT REPORTED AS SACRED HEART CONVENT V. STATE OF KERALA AND ANOTHER 2013(3) KHC 674.

Santhamma Abraham v. State of Kerala

Case brief

What is this about?

What did the court decide?

Santhamma Abraham v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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