SACRED HEART CONVENT Vs. STATE OF KERALA

JUDGEMENT

(1.) During the course of hearing of the Writ Appeal, different issues arose as to whether a building constructed to provide accommodation for the girl students of a neighbouring college could be treated as eligible for exemption, as one for "charitable or educational purpose", within the format of S. 3(1) of the Kerala Building Tax Act, 1975, for short, the "Act", having regard to the constitutional gaze and backdrop of different provisions in Parts III and IV and the Preamble to the Constitution of India. We, therefore, thought it appropriate to withdraw the Writ Petition filed challenging the Government Order refusing to grant such exemption, to be heard along with the Writ Appeal, filed challenging the interim order issued by the learned single Judge. Since the challenge to the Government Order necessitated perusal of the files, following earlier orders, the learned Special Government Pleader for the Department of Taxes has made available the assessment file and also the file on which the impugned Government Order is passed. Going through the assessment file, we have come across a crucial fact, which, if had been noticed earlier by this Court, would have terminated this checkered litigation at least in the earlier round before this Court. Unfortunately, none brought up that issue. The said fact is not only crucial but also is fundamental on counts of jurisdiction to impose the levy under the Act and therefore, gives rise to a jurisdictional issue. We, therefore, proceed to decide on that.

(2.) The Act is deemed to have come into force on the 1st day of April, 1973 in terms of S. 1(3) thereof S. 5, which is the charging provision, provides that, subject to the other provisions contained in the Act, there shall be charged a building tax based on the plinth area on every building, the construction of which is completed on or after the appointed day. The term "appointed day" is defined in S. 2(a) of the Act to mean such day as the Government may for the purpose of the Act, specify by notification in the Gazette. The day so notified by the Government is 10th day of February, 1992. Therefore, liability to tax under the Act either by way of building tax under the Act, or as luxury tax under S. 5A of the Act, would have no application to a building, the construction of which was completed before 10.2.1992. Of contextual relevance is the report in the statutory form in terms of R.3 of the Kerala Building Tax Rules, 1974, for short, the "Rules", made by the jurisdictional Village Officer, that the building was completed in 1987 and it was occupied in 1988. It also discloses the nature of the building, as residential (hostel). If the completion of the building and occupation were way back in 1987 and 1988 respectively, there is no question of any liability to pay any tax, whatsoever, under the provisions of the Act. Therefore, the demand under the Act as against the appellant/petitioner is without jurisdiction and has to go. On that premise, question relating to claim for exemption becomes academic.