S SUBHASHCHANDRABABU Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the plinth area of a garage or any other erection or structure appurtenant to a residential building used for the purpose of storage of firewood or for non-residential purpose be added on to the plinth area of that building for the purpose of building tax of the luxury tax under the Kerala Building Tax Act, 1975 is the question that has come up for consideration in these cases.

(2.) Common question arises for consideration in all these cases and hence we are disposing of those cases by a common judgment. For disposal of these cases we may refer to the facts in W.P.C. No. 15526 of 2004 against which W.A. No. 439 of 2005 has been preferred. Writ Petition was preferred seeking a writ of certiorari to quash Ext. P3 notice assessing building tax of the petitioner's residential building at Rs. 47,400/-treating the plinth area of the residential building as 600.93 M2. Petitioner referring to Ext. P1 approved plan stated that the area shown in the plan of the porch meant for parking area is 243.73 M2. Further it is also pointed out that as per the proviso to Sub-section (5) of Section 5 and the proviso to Section 6 of the Kerala Building Tax Act, plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purposes shall not be taken into account for determining the plinth area of that building. Petitioner pointed out excluding the porch meant for parking area, tax could be assessed only on an extent of 357.14 M2. Objection raised by the petitioner was rejected by the authorities and tax was assessed as per the plan approved by the Calicut Development Authority.

(3.) Learned Government Pleader placing reliance on a Circular dated 2.12.2003 issued by the Government stated that plinth area of the car porch appurtenant to residential building alone can be excluded as per the proviso to Sub-section (5) of Section 5 of the Kerala Building Tax Act and while calculating the plinth area of the building other than a residential building, the plinth area of a car porch cannot be excluded. Learned single Judge after considering the rival contentions as well as examining the various statutory provisions held that the exclusion provided under the provisos to both the above referred Sections is in respect of structures appurtenant to the residential building though intended for use incidental to residence are not generally used for the purpose for which it is meant for. Learned Judge took the view that in order to claim exemption it has to be proved that such buildings are used for purposes not connected with residence which includes storage of firewood. Learned Judge also held that the exemption clause does not provide for exclusion of any appurtenant structure if the same is used for more convenient or beneficial use of the residential building, such as for garage of a car.