P.S.Thomas vs Tahsildar on 9 January, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 25948 of 2002(L)


1. P.S.THOMAS, PULIMOOTTIL HOUSE,
                      ...  Petitioner
2. LUKE STEPHEN, PULIMOOTTIL HOUSE,
3. JOYS P.STEPHEN, PULIMOOTTIL HOUSE,

                        Vs



1. TAHSILDAR, THODUPUZHA.
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.V.V.ASOKAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

 Dated :09/01/2008

 O R D E R
                  C.N. RAMACHANDRAN NAIR, J.
                  --------------------------------------------
                        O.P. NO. 25948 OF 2002
                  --------------------------------------------
                 Dated this the 9th day of January, 2008
                                                               C.R.
                                JUDGMENT

Petitioners are challenging single assessment of a commercial

building constructed by them together. The building is a multi-storied

building consisting of several rooms. Petitioners’ case is that in the

course of construction they have partitioned the building and separate

rooms are allotted to each of the petitioners. Petitioners have produced

ground floor sketch of the building as Ext.P1. This sketch shows that

the building consists of only shop rooms, each of which cannot be said

to be an independent flat or apartment justifying separate assessments

under Explanation II to Section 2(e) of the Building Tax Act. It is seen

that common facilities are provided for all the rooms and in fact rooms

do not have separate toilet, access, passage, etc. This obviously means

that facilities in the building are shared by all the owners and each

room is not capable of independent use by any person. Even though

petitioner has relied on the decision of this Court in LISSY V.

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TAHSILDAR, (2000) 3 KLT 497, I do not think petitioners’ building

can be divided and assessed separately as it is only a shopping complex

consisting of separate rooms and not separate apartments or flats. Even

though Explanation II to Section 2(e) applies to commercial buildings

also, unless the building is divided in such a manner to treat different

portions as separate flat or apartment, it cannot be assessed separately.

Since each portion of the building is owned by each petitioner, it is for

them to share the liability of tax on proportionate basis. However, this

does not mean that each portion of the building can be separately

assessed as commercial flat or apartment. In the circumstances, the

contention of the petitioners that each portion of the building should be

assessed in proportion to the holding of each of the petitioners is not

tenable and is rejected.

2. Counsel for the petitioners raised a contention that

construction of the building was prior to 29.7.1996 by relying on lease

deed towards proof of completion of construction of the building.

Leasing out the building to a tenant is not evidence towards proof of

completion of construction of the building. If the petitioners produce

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other evidence such as date of taking electric connection, water

connection, the date of commencement of payment of property tax to

local authority, etc., before the first respondent, he will reconsider the

matter and apply the rate applicable as on the date of completion of

construction of the building. O.P. is disposed of upholding single

assessment, but subject to variation by the first respondent in regard to

rate of tax, if petitioners produce proof for completion of construction

of building on any date prior to 29.7.1996.

(C.N. RAMACHANDRAN NAIR)
Judge

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