Building Tax, Vinu C. Chacko Vs. Tahsildar, Thalappilly Taluk [Kerala High Court, 04-06-2016]

Building Tax Act, 1975 (Kerala) – Sections 2(k) and 6 – Plinth Area – Determination of – the area occupied by a ‘garage’ is not liable to be reckoned as part of the plinth area, it is absolute and the extent of the garage or the number of the garages attached to the building, cannot have any role to play.

Building Tax Act, 1975 (Kerala) – Sections 5(4) and 15 – Re assessment – Audit Objection – The course and proceedings pursued by the authorities effecting re- assessments merely based on ‘audit objection’ has been deprecated.

Held:- Once the assessment is finalised, it is of course, open for the respondents/authorities to have assessed such other areas also, which escaped assessment, if at all any additional construction have been effected by the assessee in terms of Sec. 5(4). If any error ‘apparent on the face of the records’ is there, then also it is open for the respondents to step in, invoking the power and jurisdiction under Section 15, for rectifying the same. But for the above two courses, the statute does not contemplate any ‘re-assessment’, so as to have it substituted in place of the former; more so based on any ‘audit objection’.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON, J.

W.P.  (C) No.11766 OF 2012 (U)

Dated this the 4th June, 2012

FOR PETITIONER(S):  BY ADV. SRI.C.PRABIN BENNY; FOR RESPONDENT(S): BY GOVERNMENT PLEADER SRI.NOBLE MATHEW

J U D G M E N T

The area occupied by a ‘car porch’ is not liable to be reckoned as plinth area under section 2(k) of the Kerala Building Tax Act, by virtue of exclusion under the proviso to Section 6 of the Act and also by virtue of the law declared by a Division Bench of this Court in Subhashchandrababu v. State of Kerala, 2006 (2) KLT 189. Question is, will it tilt the balance in any manner, if the owner of the building is having ‘two garages’ attached to the building and whether the respondents are justified in saying that only ‘one’ of the two garages will be eligible for exemption. Yet another question involved is whether the assessment finalised by the concerned authorities is liable to be re-opened, merely on the basis of the ‘audit objection’, when the assessment was completed in a different manner.

2. The petitioners are joint owners of the property and the building constructed therein. It is stated that altogether 8 members were there in the family, pursuing independent avocations of their own. The building was actually having a plinth area of 275.69 Sq.metre and upon completion of the construction of the building, it was assessed by the first respondent , who passed Ext. P1 order dated 27.03.2008, fixing the tax liability under Section 5 of the Kerala Building Tax Act at Rs.7800/-, which is stated as satisfied.

3. Quite after a long time, the petitioners were served with Ext.P2 notice/proceedings dated 13.10.2009, observing that there was some ‘audit objection’ with regard to the assessment made and as per the opinion of the auditing authority, the area occupied by only ‘one’ car porch was liable to be excluded from the reckonable plinth area. Since the building was having two car porches, the area occupied by one of the car porches was objected and in turn the plinth area was enhanced to 310.08 Sq.metre . Accordingly, the liability was re-fixed under Section 5 as Rs.12600/- and the petitioners were directed to satisfy the balance amount of Rs.4800/- besides fixing and demanding the ‘luxury tax’ under Section 5A at the rate of Rs.2000/- per year, vide Ext.P3 demand notice dated 13.10.2009.

4. Being aggrieved of the above re-assessment, the petitioners approached the appellate authority by filing appeal dated 30.10.2009. Referring to the ‘audit objection’ and pointing out the eligibility to have exemption only in respect of ‘one’ car porch, interference was declined and the appeal was dismissed . Met with the situation, the petitioners approached the revisional authority as well, who sought to sustain the impugned orders, observing that the Statute only refers to the term ‘car porch/garage’ to be excluded and not ‘car porches/garages’. Since the Statute only uses the ‘singular’ and not ‘plural’, interference was declined and the Revision Petition was dismissed as per Ext. P6 order dated 05.05.2012., which is under challenge in this writ petition.

5. Based on the submissions made from either side that the matter only involves proper interpretation of the relevant provisions of law and binding judicial precedents and since it was submitted across the Bar that there was no factual dispute and no counter affidavit was necessary, it was heard, as agreed.

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