IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 22647 of 2007(U)
1. ABDUL RASHEED PARAKKODAN, REPRESENTED
... Petitioner
Vs
1. THE DISTRICT COLLECTOR, MALAPPURAM.
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. THE TAHSILDAR, PERINTHALMANNA,
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/12/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C)NO.22647 OF 2007 -U
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Dated this the 1st day of December, 2007.
JUDGMENT
Exhibit P2 is an order of assessment of luxury tax of a
residential building. This was on the basis that the plinth area
of the building was 313.8 sq.m. Petitioner challenged the said
assessment in an appeal which was disposed of by Ext.P2 by
remanding the matter for reconsideration. It was also directed
that the plinth area shall be reassessed by the PWD Engineer.
2. It is stated that, accordingly, the plinth area was
remeasured and by Ext.P3, the Tahsildar issued fresh proceedings
re-assessing the plinth area to be 319.74 sq.m. It was also
found that there are two car porches and one fire wood storage
place having a total plinth area of 53.33 sq.m. Thus, excluding
the area of car porches and fire wood storage place, taxable
plinth area was assessed to be 266.41 sq.m. Again an appeal
was filed and by Ext.P4, the R.D.O held that, of the two car
porches, only one could be excluded in view of the proviso to
Section 5(5) of the Kerala Building Tax Act. Thus excluding one
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car porch, the R.D.O found that total plinth area was 278.7 sq.m.
This order of the appellate authority was confirmed in revision and
challenging Exts.P1 and P3 to P5, this writ petition has been filed.
Proviso to Section 5 (5) is extracted below for reference.
“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”.
3. A reading of the above proviso would indicate that plinth
area of a garage is liable to be excluded and not to be included in
the plinth area that has to be reckoned for the purpose of levying
luxury tax. If that be so, there is no warrant for assigning a
restricted interpretation to the proviso to the effect that it is
intended only to exclude only one garage. It is not uncommon
that a residential building may have more than one garage and I
do not find any reason to accept the contention of the
respondents that only one garage can be excluded. Similar is
the interpretation that I will assign to the proviso to Section 6 as
well. If that be so, the interpretation given by the authorities
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and the order now passed by the appellate authority and confirmed
by the revisional authority in Ext.P4 and Ext.P5 cannot stand.
4. Accordingly, Exts. P4 and P5 will stand quashed. The 3rd
respondent shall exclude the plinth area occupied by the garages
and also fire wood storage and issue a fresh demand to the
petitioner in accordance with law.
The writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE.
cl
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