High Court Kerala High Court

The District Collector vs V.K.Sreekumari Kunjamma on 21 December, 2010

Kerala High Court
The District Collector vs V.K.Sreekumari Kunjamma on 21 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1262 of 2009()


1. THE DISTRICT COLLECTOR, CIVIL STATION,
                      ...  Petitioner
2. THE REVENUE DIVISIONAL OFFICER,
3. THE TAHSILDAR, KANAYANNUR TALUK,

                        Vs



1. V.K.SREEKUMARI KUNJAMMA, AGED 54 YEARS,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.P.M.MOHAMMED SHIRAZ

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice B.P.RAY
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :21/12/2010

 O R D E R
                                                                                   C.R.
                     C.N.RAMACHANDRAN NAIR,
                        BHABANI PRASAD RAY, &
                              P.N.RAVINDRAN, JJ.
               ....................................................................
                        Writ Appeal No.1262 of 2009
               ....................................................................
               Dated this the 21st day of December, 2010.

                                      JUDGMENT

Ramachandran Nair, J.

The specific question referred to the Full Bench by a Division

Bench of this court is whether a building with two residential

apartments owned by the same person should be assessed as a single

building in his name as the owner or should be assessed as two

buildings treating each residential apartment as a separate building in

the name of the same owner. Considering the importance of the issue

and the divergent opinions expressed by different Benches of this

court, the Division Bench referred the matter for decision by Full

Bench. We have heard Government Pleader appearing for the

appellant and counsel appearing for the respondent.

2. The learned Single Judge referred to a Single Bench judgment

of this court in LALITHA VS. STATE OF KERALA reported in 1994

(2) KLT 66 and held that since there is no provision for clubbing plinth

W.A. 1262/2009 2

areas of different buildings under common ownership for the

assessment of building tax, the building involved which is a single

building with two residential apartments, cannot be assessed as one

building. The question has to be considered with reference to the

relevant provisions in the Kerala Building Tax Act, 1975 (hereinafter

called “the Act”) which are extracted hereunder:

S.2. Definitions:-

(e) “building” means a house, out-house, 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.

Explanation 1:- In the case of buildings constructed for
providing housing accommodation for workers and their
families residing in plantations, in pursuance of Section 15 of
the Plantations Labour Act, 1951 (Central Act 69 of 1951) or
buildings constructed under the Government of India
Subsidised Housing Scheme for industrial workers, each part
of a building providing or intended to provide
accommodation for a worker or a worker and his family shall
be deemed to be a separate building.

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.

W.A. 1262/2009 3

(k) “plinth area” means the area included in the floor of
a building and where a building has more than one floor the
aggregate area included in all the floors together:

Provided that in the case of a building referred to in the
Explanation 2 to clause (e), the plinth area shall be calculated
separately.

S.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 on every building
the construction of which is completed on or after the
appointed day.

S.7. Return of completion, etc., of building:- (1) The owner of
every building the construction of which is completed, or to
which major repair or improvement is made on or after the
appointed day shall furnish to the assessing authority a return
in the prescribed form within the prescribed period along with
a copy of the plan approved by the local authority or such
other authorities as may be specified by the Government in
this behalf and verified in the prescribed manner and
containing such particulars as may be prescribed.

S.9. Assessment:- (1) If the assessing authority is satisfied
that a return made by an owner under Section 7 or Section 8
is correct and complete, it shall assess the amount payable by
him as building tax or luxury tax on the basis of the return.”

What is clear from the above provisions is that the subject matter of

assessment is the building and the person to be assessed is the owner

and the basis of assessment is the plinth area of the building. The

W.A. 1262/2009 4

charging section makes it clear that the charge of tax is on the plinth

area of every building constructed after the appointed day. Section 7

makes it mandatory that the owner of every building the construction

of which or the major improvement to which is made on or after the

appointed day, shall furnish to the officer a return in the prescribed

form for the purpose of assessment. Section 9 says that if return is

correct and complete, the Assessing Officer shall complete assessment

based on return filed. What is clear from these provisions is that

assessment has to be completed for each and every building

constructed and for this purpose, the owner of the building should file

as many returns as the number of buildings he has constructed.

Therefore, separate building tax assessments have to be made in the

name of very same person for all the buildings constructed or repaired

by him which attract liability. Since the charging section specifically

speaks about levy of tax based on the plinth area of every building

constructed, separate assessment is called for in the name of the same

owner for the plinth area of every building constructed by him. In the

scheme under the Central Income Tax Act, charge of tax is on the total

W.A. 1262/2009 5

income of a person from all sources and under all heads which are

clubbed together for assessment. However, for the purpose of

assessment of building tax, there is no provision in the Act to make

only single assessment for every financial year in respect of plinth area

of all buildings constructed by a person. In the absence of any

provision in the Act authorising clubbing of plinth areas of different

buildings or common assessment in the hands of a single person for all

buildings constructed by him, there cannot be single building tax

assessment for all the buildings constructed by him. So much so, the

statutory scheme authorises separate assessment for each and every

building in the name of the same owner. In other words, same person

can be subject to separate assessment for building tax for each and

every building constructed by him. This proposition of course applies

to independent buildings constructed by a man. However, the question

to be considered is whether this principle laid down in the decision in

LALITHA VS. STATE OF KERALA referred above and followed by

the learned Single Judge applies for assessment of two flats or multi-

flat apartment building constructed and owned by the same person.

W.A. 1262/2009 6

3. The question above referred has to be answered with reference

to the definitions of “building” and “plinth area” which is the basis of

charge under the charging section. “Building” as defined under the

main clause (e) of Section 2 covers all buildings in the literal sense and

besides it, it includes every structure or part of a building. The plinth

area which is the basis of assessment under Section 2(k), takes in the

floor area of the building and where the building has more than one

floor, the aggregate area included in all the floors have to be taken

together. In other words, if a building owned by the person consists of

several floors, the same has to be assessed as a single unit and the

assessment has to be on the total plinth area of the building. Going by

the definition of “building” contained in Section 2(e) read with

definition of “plinth area” under Section 2(k) and the charging section,

Section 5, a multi-storied building or a building with different

residential or commercial apartments has to be assessed as a single unit

on the total plinth area which include the plinth area of all the floors of

the building. However, the assessment has to be necessarily in the

name of the owner or owners of the building, if it is jointly owned by

W.A. 1262/2009 7

several persons. Two exceptions are provided in the Act against single

assessment of multi-flat apartment, whether residential or commercial.

Explanation (1) of Section 2(e) deals with assessment of buildings

constructed for providing accommodation to workers and their families

residing in plantations and also buildings constructed under the

Government of India Subsidised Housing Scheme for industrial

workers. In the case of these buildings, each part of the building

providing or intended to provide accommodation for a worker or

family of a worker shall be deemed to be a separate building. In other

words, but for this exception, even though a building with several

residential units providing accommodation to different workers or

families of different workers is assessable as a single building under

the main clause Section 2(e), the fiction available under Explanation 1

of Section 2(e) provides for treatment of each such residential unit

within a building as a separate building for assessment. In other

words, but for this exception even apartment buildings, whether line

buildings or multi-storied buildings providing accommodation to

employees in plantations or industries, would have been assessed as a

W.A. 1262/2009 8

single building in the name of the owner-employer. The second

exception providing for separate assessment of different flats or

apartments in the same building are those buildings constructed by

several persons sharing the cost of construction and owning the

building as flats or apartments among themselves. Here again, the

exception provides for separate assessment of each flat or apartment of

a multi-flat or multi-apartment building in the name of each owner of

the flat or apartment. It is very common that several persons pool

their resources and construct buildings for commercial or residential

purposes and share the building each one taking separate flat or

apartment. By virtue of the provision contained in Explanation 2,

each and every apartment or flats comprised in the single building

constructed by sharing the cost of construction by the several owners

jointly shall be deemed to be separate buildings for assessment. If

the Explanation was not there in the statute, the building consisting of

different apartments or flats owned by several persons and constructed

by sharing the cost would have been assessed as a single building

under the main clause (e) in the joint names of all of them.

W.A. 1262/2009 9

4. What is clear from the above provision is that a building

irrespective of the number of flats or apartments contained therein,

should be assessed as a single unit and the exceptions are only those

stated in Explanations 1 and 2 stated above. A Division Bench of this

court in SHENOY REAL ESTATES (P) LTD. VS. TAHSILDAR

reported in 2004(1) KLT 133 held that sale of flats by a builder after

completion of construction of apartment building to different owners

will not justify separate assessment of each flat under Explanation (2)

to Section 2(e) of the Act. What is to be noted from this judgment is

that unless apartment building is constructed by the joint owners by

sharing the cost, each and every apartment cannot be assessed as a

separate building, no matter the building after construction was sold by

the owner to different persons. In this case different ownership for the

building happens after completion of construction of the building and,

the sale made thereafter to different owners is immaterial for the

purpose of assessment. In fact, the incidence of tax is on completion

of construction of the building and it is immaterial as to whether the

owner retains the building or transfers the same in full or in part or in

W.A. 1262/2009 10

pieces after completion of construction. Separate assessment of each

and every flat is called for only in respect of the constructions covered

by Explanations (1) and (2) of Section 2(e).

5. In the result and in view of our findings above, we hold that

the single building consisting of two separate flats constructed by the

respondent has to be assessed as a single building as the building does

not fall within the Explanation (1) or (2) of Section 2(e). We,

therefore, allow the appeal by vacating the judgment of the learned

Single Judge and by restoring the single assessment of the building

comprising of two residential units.

C.N.RAMACHANDRAN NAIR
Judge

BHABANI PRASAD RAY
Judge

P.N.RAVINDRAN
Judge
pms