STATE OF KERALA Vs. MOILAKARIYATH ABDULLA

JUDGEMENT

(1.) The common question referred to the Full Bench by the Division Bench in all these cases is whether residential building to which additional plinth area constructed after 01/04/1999 attracts liability for luxury tax under Section 5A of the Kerala Building Tax Act, 1975 (hereinafter referred to as the Act for short), if the plinth area with the addition made is 278.7 sq.ms. or more. Reference to Full Bench was made because the Division Bench during hearing the matter doubted the correctness of a Division Bench judgment in Joy Joseph v. District Collector, 2009 2 KerLT 348, wherein the Division Bench held that luxury tax will be attracted for extension made to residential building after 01/04/1999 only if such extension by itself is above the plinth area of 278.7 sq.ms. In other words, according to the said decision, even if the total plinth area including the additions made after 01/04/1999 happens to be 278.7 sq.ms. or more, such residential building will not attract luxury tax at Rs. 2,000/- annually as provided under Section 5A of the Act. We have heard learned Government Pleader for the appellants, learned counsel for the petitioner in the Writ Petition and also learned counsel appearing for the respondents in the Writ Appeals.

(2.) Learned Government Pleader for the State supported the observations in the reference order and contended that under the charging Sections, i.e. Sections 5 & 5A, incidence of building tax and luxury tax keep on changing depending on modifications or additional constructions made to a building. Learned counsel appearing for the respondents, on the other hand, contended that Section 5A has to be treated as an independent provision and the same applies only to buildings constructed with the plinth area stated therein after 01/04/1999. Alternately, it is contended by the respondents' counsel that even if the additional plinth area constructed to the residential building by itself is treated as "residential building" attracting luxury tax, then liability under Section 5A will be attracted only if such additional construction made after 01/04/1999 by itself is 278.7 sq.ms. or more.

(3.) In order to consider the rival contentions, we have to necessarily go by the relevant statutory provisions, namely Sections 5 and 5A of the Act. Since modification or additional construction to the building is visualised under the Act, we feel Section 5A has to be understood with reference to other provisions of the Act, particularly the charging Section, namely Section 5. For easy reference we extract hereunder Sections 5 & 5A of the Act.