SREEROSH PROPERTIES P LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the course pursued by the assessing authority under the Kerala Building Tax Act, i.e. second respondent in assessing the 'building tax' and 'luxury tax' under Section 5 and 5 A respectively, treating the whole building, consisting of ground floor and 12 other floors constructed by the petitioner/builder using the funds provided by the prospective purchasers, is liable to be treated as a single unit, to fix the tax liability or whether the same hats to be assessed separately, is the issue involved in this case.

(2.) The petitioner, who is a builder, entered into a joint venture agreement with the land owner to construct the building as aforesaid, making use of Ext.P1 building permit issued by the concerned local authority in the name of the landowner. Altogether, 31 flats were constructed as separate apartments with separate entries and amenities, of course providing common amenities as provided and the project was given shape to, on the basis of separate construction agreements as well as separate agreements to convey undivided interest in the land.

(3.) The specific case of the petitioner is that, by virtue of the joint venture agreement, '6' flats had to be constructed and alloted to the land owner, while '25' flats come within the purview of the assignment of the builder. The aforesaid 25 flats were constructed on the basis of the funds provided by the prospective customers and the construction was completed accordingly, on the basis of which, Ext.P7 occupancy certificate was issued. The case projected by the petitioner that, the apartments had to be assessed separately at the hands of the prospective owners was not fully accepted by the assessing authority, who passed Ext.Pl9 assessment order. The grievance of the petitioner is that, separate assessment in respect of '19 flats' has been accepted; whereas the authority sought to assess 'six' flats constructed and alloted in favour of the land owner and the remaining 'six' flats (out of 25), taking the entire area as a single unit, fixing the tax liability jointly upon the petitioner/builder/landowner and the six different persons named therein who are the allottees of the concerned flats. The reason given to have pursued such a course is that, in the case of persons shown in serial numbers 20 to 25, the conveyance of the undivided interest in the land is taken place only after effecting the construction and hence that the separate assessment is not possible in their names. With regard to the serial numbers 26 to 31, these are six flats constructed and alloted in the name of the land owner by name Lakshmikutty Amma. It is stated that, even though the said flats have been earmarked in the name of the land owner, no separate documents have been produced by the petitioner/builder, to have effected separate assessment. Accordingly the total liability was fixed as Rs. 2,35,290/-towards 'building tax' under Section 5 and also as to the liability to pay 'luxury tax' under Section 5 A.