Mathew vs. State Of Kerala

The appellant/writ petitioner had constructed a building, the approved plan of which is produced at Exhibit P2. The total plinth area, as seen from Exhibit P2, is 297.74 square metres. One of the contentions raised by the appellant is that in determining the plinth area for the purpose of assessment, Section 6 of the Kerala Building Tax Act, 1975 [for brevity “Building Tax Act”] speaks of reference to the plinth area of the building as specified in the - 2 - plan approved by the local authority or such other authorities. Hence, for the purpose of determining the plinth area, necessarily the plan approved by the local authority has to be imported into the Act. The plinth area so computed will lead to certain exemptions; inter alia of the car porch area. The appellant has also one other contention that in granting the exemption, both the car porches of the appellant have to be so exempted based on Circular No.REV.SC3/134/2017-REV dated 11.09.2017, which was issued in the wake of the judgment of this Court in Vinu C.Chacko v. Tahsildar [2014 (4) KLT 171].

On facts, suffice it to notice that the appellant had constructed a building having a plinth area of 297.74 square metres; in which there were two car porches on the two sides of the building. When excluding the area of the car - 3 - porches, the plinth area would come to only 269.98 square metres; which would not come within the ambit of Section 5A of the Building Tax Act, which imposes luxury tax on a building which has a plinth area of 278.7 square metres or more. The learned Government Pleader refers to a judgment of this Court in Philip Philip v. District Collector [2017 (1) KLT 578], affirmed in W.A.No.810 of 2017 by judgment dated 29.05.2017, which negatives any reference to the definition of 'plinth area' as available in the Kerala Building Rules. However, we are of the opinion that the question of law need not be looked into, since on facts and the admitted plinth area we find the appellant to be coming within the charge of luxury tax under Section 5A of the Building Tax Act.

As per Section 6, the determination of total plinth area has to be based on the approved - 4 - plan by the local authority or such authority. The approved plan at Exhibit P2 shows a total plinth area of 297.74 square metres. Admittedly there are two car porches to the building owned by the appellant. At the first instance against the demand made, the appellant preferred an appeal before the Revenue Divisional Officer, which was remanded to the Tahsildar. By Exhibit P10, the Revenue Divisional Officer specifically directed to re-measure the building. The subsequent assessment made is produced at Exhibit P11. Therein, we see that the measurement taken of the total plinth area is 281.04 (ground floor 167.07 and first floor 113.97). The two porches have also been measured as having area of 31.92m2 & 12.50m2. Hence, we cannot adopt the plinth area as provided in the plan itself, i.e., 297.74 square metres, which includes ground floor of 160.60m2, first floor of 109.38m2 and porch of - 5 - 27.76m2. The actual measurement shows the construction to be in excess of the approved plan. We need not go into the question of whether two car porches could be exempted under the proviso to Section 6, since the plinth area measured comes to 281.04m2. 5. We also directed the files to be produced, in which, we find a return has been filed by the appellant himself showing the plinth area to be 275.72 square meters and the porch area to be 33.92 square meters, showing a total plinth area of 309.64 square meters. This is also in excess of that in the approved plan further fortifying our decision to discard the plinth area shown in the plan being less than that actually constructed. In such circumstances, we do not think that there could be any interference caused to the judgment of the learned Single Judge. We dismiss - 6 - the appeal, however make it clear that the appellant would be permitted to challenge the future levy in view of the constitutional amendments made for introduction of the goods and services tax enactment. K. VINOD CHANDRAN, JUDGE. ASHOK MENON, JUDGE. //// P.A. To Judge vku/sp/17/07/18