Allowed

M/S. Meritra Homes Pvt. Ltd., v. State of Kerala

Kerala HC16 Jan 2024WP(C)/6649/2023

Case brief

AI extract

What is this about?

A builder challenged assessment and demand notices imposing building tax and luxury tax on its apartment project, claiming all 71 flats were owned and possessed by individual buyers who funded construction. The court held the builder could not be saddled with the liability in such a case, set aside the orders, and granted a fresh hearing before the assessing authority.

What the court decided

AI extract

M/S. Meritra Homes Pvt. Ltd., Vs State of Kerala — Property and Title | Kerala HC (2024)

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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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TUESDAY, THE 16^TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945

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WP(C) NO. 6649 OF 2023

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PETITIONER/S:

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M/S. MERITRA HOMES PVT. LTD., 3RD FLOOR, VALAMATTOM ESTATE, M.G. ROAD, RAVIPURAM, ERNAKULAM, REP. BY MANAGING DIRECTOR SHRI.RAVISANKAR T.N, SON OF T.P. NARAYANAN,AGED 52 YEARS, RESIDING AT RESIDING AT VILLA NO. 27, IMPERIAL GARDENS, EROOR P.O, THRIPOONITHURA, ERNAKULAM, PIN – 682306.

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BY ADVS. PEEYUS A.KOTTAM RAGESH CHAND R.G.

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIATE, TRIVANDRUM, PIN - 695001

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2 DISTRICT COLLECTOR, ERNAKULAM, FIRST FLOOR OF CIVIL STATION, ECHAMUKU, KUNNUMPURAM, KAKKANAD, KERALA, PIN - 682030

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3 TAHSILDAR, KANAYANNOOR TALUK, KANAYANNUR, PARK AVE, NEAR SUBHASH PARK, MARINE DRIVE, KOCHI, KERALA-682011.

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BY ADV PUBLIC PROSECUTOR

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OTHER PRESENT:

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SMT.JASMINE M.M.-GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 6649 OF 2023

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J U D G M E N T

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The present writ petition has been filed challenging Ext.P10 assessment order and Ext.P11 demand notice in respect of luxury tax and building tax, respectively, on the multi storied residential apartment named 'Rainwoods' constructed by the petitioner on the land situated in re-survey No.291/1-18 of Thrikkakkara North Village, which the petitioner had acquired vide sale deed No.458/2016. The petitioner is a builder, who had constructed altogether 71 residential apartments in the said project named 'Rainwoods'. According to the petitioner, on the date of occupancy certificate, all the flats were transferred to individual flat buyers through agreements. He further submits that from the very beginning, the individual flat buyers had contributed in construction of the said project. He, further, submits that out of the 71 flats, no flat is in occupation and possession of the petitioner. The

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WP(C) NO. 6649 OF 2023

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impugned orders/demand notices have been passed without affording adequate opportunity to the petitioner to produce relevant documents to suggest that the flats are owned and possessed by individual flat buyers, who had contributed in construction of the project 'Rainwoods'. It is submitted that the petitioner cannot be saddled with the liability of building tax or luxury tax, when none of the flat is in possession or occupation of the petitioner and all the 71 flats are individually owned by different flat buyers.

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The petitioner submits that all the 71 individual owners of the flats in the said project 'Rainwoods', are to be assessed individually for the purpose of building tax and luxury tax.

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If the petitioner had parted with all the flats on or before the date of occupancy certificate and the flats are constructed through the contribution of individual flat owners, the petitioner cannot be saddled with the liability of building tax or luxury tax. Each flat individually

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WP(C) NO. 6649 OF 2023

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is to be assessed for the purpose of building tax and luxury tax, if any, in such a case.

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In view of the above, the present writ petition is allowed and the impugned assessment order and demand notice, Exts.P10 & P11, are set aside. The petitioner is granted one more opportunity to appear before the assessing authority on 18.1.2024 with all relevant records and the assessing authority will examine the records/documents so produced by the petitioner and pass fresh orders, in accordance with law.

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Pending interlocutory application, if any, in the present writ petition stands dismissed.

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Sd/DINESH KUMAR SINGH JUDGE

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WP(C) NO. 6649 OF 2023

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APPENDIX OF WP(C) 6649/2023

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PETITIONER EXHIBITS

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Exhibit P1 THE TRUE COPY OF THE BUILDING PERMIT NO. BA2328/16 DATED 27.10.2016 ISSUED BY KALAMASSERY MUNICIPALITY

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Exhibit P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 06.08.2021 ISSUED BY KALAMASSERY MUNICIPALITY

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Exhibit P3 TRUE COPY OF THE CONSTRUCTION AGREEMENT DATED 14.03.2017 EXECUTED BETWEEN THE PETITIONER COMPANY WITH AJITH THOTTATHIL RAJAN

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Exhibit P4 TRUE COPY OF THE LEDGER ACCOUNT EXTRACT OF THE BUYER AJITH RAJAN WITH THE PETITIONER

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Exhibit P5 TRUE COPY OF THE CONSTRUCTION AGREEMENT ENTERED BETWEEN PETITIONER AND JAYARAM P.G. DATED 11.12.2019

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Exhibit	P6 TRUE COPY OF THE THE PAYMENT MADE THE CONSTRUCTION PETITIONER	LEDGER ACCOUNT EXTRACT SHOWING BY JAYARAM & KOCHUMARY TOWARDS EXPENSE THROUGH BANK TO THE
Exhibit	P7 TRUE COPY OF THE 05.04.2018 ENTERE PAUL	CONSTRUCTION AGREEMENT DATED D BETWEEN PETITIONER AND PINKY
Exhibit	P8 TRUE COPY OF THE THE PAYMENT MADE CONSTRUCTION EXPE PETITIONER	LEDGER ACCOUNT EXTRACT SHOWING BY PINKY PAUL TOWARDS THE NSE THROUGH BANK TO THE
Exhibit	P9 THE TRUE COPY OF APARTMENTS OWNERS	THE DETAILS OF THE INDIVIDUAL IN THE PETITIONER'S PROJECT

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WP(C) NO. 6649 OF 2023

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Exhibit P10 THE TRUE COPY OF THE ORDER OF ASSESSMENT DATED 13.10.2022 ISSUED BY THE TAHAZILDAR, KANAYANNOOR, TO THE PETITIONER

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Exhibit P11 THE TRUE COPY OF THE DEMAND FOR THE LUXURY TAX ISSUED BY THE TAHSILDAR

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Exhibit P12 TRUE COPY OF THE JUDGMENT REPORTED IN 2014 (4) KHC 154 (TAHAZILDAR KOCHI AND ANOTHER VS. DR. SOMAN PETER)

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Exhibit P13 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 35898/2015 DATED 31.08.2016

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Exhibit P14 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C).NO. 33155/2018 DATED 30.10.2018

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Exhibit-P10 TRUE COPY OF THE ORDER OF ASSESSMENT DATED 13.10.2022 ISSUED BY THE TAHAZILDAR, KANAYANNOOR, TO THE PETITIONER

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Exhibit-P11 TRUE COPY OF THE DEMAND FOR THE LUXURY TAX ISSUED BY THE TAHSILDAR

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RESPONDENT EXHIBITS

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EXHIBIT	TRUE COPY OF THE	NOTICE U/s.9(2) AND (4) DATED
R3(a)	24.08.2021 AND I	TS TRANSLATION
EXHIBIT	TRUE COPY OF THE	ASSESSMENT NOTICE DATED 20-01-
R3(b)	2022 AND ITS TRA	NSLATION
EXHIBIT	TRUE COPY OF THE	REQUEST OF THE PETITIONER
R3(c)	DATED 18.02.2022	AND ITS TRANSLATION
EXHIBIT	TRUE COPY OF THE	ASSESSMENT PROCEEDINGS No.B3-
R3(d)	11043/2021 DATED	26.09.2022 AND ITS TRANSLATION

M/S. Meritra Homes Pvt. Ltd., v. State of Kerala

Case brief

What is this about?

What the court decided

M/S. Meritra Homes Pvt. Ltd., v. State of Kerala

Case brief

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What the court decided

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