M.R. Shiny Babu v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-03-07
Court Decision / Holding: Writ petition dismissed; No Costs.
Final Disposition: Writ petition dismissed; No costs.

Parties to the Case

Appellants / Petitioners

M.R. Shiny Babu

Respondents

The State of Kerala represented by its Secretary, Department of Taxes, Thiruvananthapuram
Tahsildar & Assessing Authority under Building Tax Act, Taluk Office, Kodungallur, Thrissur
The Village Officer Lokamelleswaram Village Office, Kodungaloor, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Suraj S.

Counsels for Respondents

• SMT. M.M. Jasmine

Case Synopsis & Summary

The petitioner challenges a building tax assessment under the Kerala Building Tax Act, 1975, alleging that Section 5A luxury tax applies only to residential buildings with large plinth areas and that the use of the first floor for a commercial purpose should exempt the structure from tax. The petitioner contends that she inhabits the ground floor and began occupying the building from 1 April 1999, with completion certificates dated 1999, and claims the assessment, initiated in 2002, cannot be sustained on the grounds of timing and classification. The district authorities assessed the building under Sections 5 and 5A after inspecting the structure; a Village Officer report in 1999 and subsequent measurements reduced the plinth area to around 297.55 sq m. The dispute centers on whether luxury tax is triggered by a mere commercial use of part of a residential building. The court notes that Section 5A imposes a luxury tax on residences above a specified plinth, and that the “use” of a residential building is not a decisive factor in determining liability. The decision cites Ayshakunji v. Tahsildar (2012) 4 KLT 193 for the proposition that partial commercial use of a residence does not defeat luxury tax liability. On these grounds, the court holds there is no basis to interfere with the assessment under Section 5A and dismisses the petition, observing no costs.

Provisions of Law Cited

Kerala Building Tax Act, 1975 - Section 5AKerala Building Tax Act, 1975 - Sections 5 and 5A

Legal Doctrines & Maxims

The mere ground of a part of a residential building being used for a commercial purpose is inconsequential for determining luxury tax liability under Section 5A.
Ayshakunji v. Tahsildar

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Section 5A imposes luxury tax only on residential buildings with a plinth area above a specified threshold and that the use of part of the building for business cannot attract luxury tax; occupancy timing and completion dates were cited to dispute the basis of assessment; the mere commercial use of a portion of a residential structure cannot defeat liability under Section 5A.

Contentions of Respondents

The respondents contended the building was rightly assessed under Sections 5 and 5A; the user of the first floor is not relevant to luxury tax liability; the airport measures and completion dates support the assessment; relied on established readings and prior decisions to justify tax liability.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ayshakunji v. Tahsildar	2012 (4) KLT 193	Positive	Cited to support that partial commercial use of a residential building does not defeat luxury tax liability under Section 5A.
W.P.(C) No. 35525 of 2010	W.P.(C) No. 35525 of 2010	Mentioned Only	Ext.P15 is cited as a judgment; its holdings are not discussed in detail in this judgment.
W.P.(C) No. 17703 of 2012	WP(C) 17703 of 2012	Mentioned Only	Ext.P19 refers to this judgment; no explicit treatment discussed.
O.P. No. 6597 of 2003	OP No. 6597 of 2003	Mentioned Only	Referenced through Ext.P10 in relation to interim orders; not analyzed for holdings here.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938** **WP(C).No. 10539 of 2015 (N) ----------------------------** ## **PETITIONERS:** ## **------------** **M.R.SHINY BABU, AGED 45 YEARS W/O.LATE M.R.BABU, MANKUZHY HOUSE, P.O.KODUNGALLUR.** **BY ADV. SRI.SURAJ.S** ## **RESPONDENTS:** ## **------------** **1. THE STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, THIRUVANANTHAPURAM.** **2. TAHSILDAR & ASSESING AUTHORITY AUTHORITY UNDER BUILDING TAX ACT, TALUK OFFICE, KODUNGALLUR, THRISSUR.** **3. THE VILLAGE OFFICER LOKAMELLESWARAM VILLAGE OFFICE, KODUNGALOOR, . THRISSUR DISTRICT** **R1-R3 BY GOVERNMENT PLEADER SMT.M.M.JASMINE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10539 of 2015 (N)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**EXT.P1:**|**A TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE**| |---|---| ||**MUNICIPALITY.**| |**EXT.P2:**|**A TRUE COPY OF THE APPROVED PLAN OF THE GROUND FLOOR USED**| ||**FOR RESIDENCE.**| |**EXT.P3:**|**A TRUE COPYOF THE APPROVED PLAN OF THE FIRST FLOOR USED**| ||**FOR BUSINESS.**| |**EXT.P4:**|**A TRUE COPY OF THE COMPLETION CERTIFICATE DATED**| ||**07/05/1999 ISSUED BY THE KODUNGALOOR MUNICIPALITY.**| |**EXT.P5:**|**A TRUE COPY OF THE CERTIFICATE DATED 16/05/2000.**| |**EXT.P6:**|**A TRUE COPY OF THE RECEIPT OF THE PROPERTY TAX FOR THE**| ||**ROOM NUMBER 171 (1) DATED 27/08/2001.**| |**EXT.P7:**|**A TRUE COPY OF THE RECEIPT OF THE PROPOERTY TAX FOR THE**| ||**ROOM NUMBER 171 (2) DATED 27/08/2001.**| |**EXT.P8:**|**A TRUE COPY OF THE DRUG LICENSE DATED 08/09/2000 WHICH**| ||**WAS RENEWED TIME TO TIME BY THE ASSISTANT DRUG'S**| ||**CONTROLLER FOR CONDUCTING ALLOPATHIC DRUG WHOLESALE.**| |**EXT.P9:**|**A TRUE COPY OF THE SAID DEMAND NOTICE.**| |**EXT.P10:**|**A TRUE COPY OF THE INTERIM ORDER ISSUED BY THIS HON'BLE**| ||**COURT DATED 27/02/2003 IN CMP NO. 11547 OF 2003 IN OP NO.**| ||**6597 OF 2003.**| |**EXT.P11:**|**A TRUE COPY OF THE JUDGEMENT DATED 30/10/2006 IN OP NO.**| ||**6597/2003.**| |**EXT.P12:**|**A TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXT.P13:**|**A TRUE COPY OF THE REPRESENTATION DATED 08/10/2010.**| |**EXT.P14:**|**A TRUE COPY OF THE ORDER DATED 02.11.2010 OF THE 2ND**| ||**RESPONDENT**| |**EXT.P15:**|**A TRUE COPY OF THE JUDGMENT DATED 13.08.2012 OF THIS**| ||**HON'BLE COURT IN W.P.(C) NO.35525 OF 2010**| |**EXT.P16:**|**A TRUE COPY OF THE REPORT RECEIVED BY THE PETITIONER**| ||**UNDER RIGHT TO INFORMATION ACT**| |**EXT.P17:**|**A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER**| ||**BEFORE THE SECOND RESPONDENT**| **....2** **WP(C).No. 10539 of 2015 (N)** **-2-** **EXT.P18: A TRUE COPY OF THE ORDER DATED 16.09.2014 OF THE 2ND RESPONDENT EXT.P19: A TRUE COPY OF THE JUDGMENT DATED 30.07.2012 IN WP.(C) 17703 OF 2012 EXT.P20: A TRUE COPY OF THE NOTICE DATED 10.12.2014 RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **//TRUE COPY// P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 10539 of 2015 (N) -----------------------------------------Dated: 7[th] March, 2017 ## **J U D G M E N T** The petitioner is aggrieved with the building tax assessment, which, according to the petitioner, cannot be sustained for reason of the use to which the first floor of the building is put. The petitioner's contention is that the petitioner is residing in the ground floor and the first floor is used for a commercial purpose, i.e, a business run by the petitioner herself. In such circumstance, no levy could be made under Section 5A of the Kerala Building Tax Act, 1975 ('Act' for short), is the contention. It is also submitted that the petitioner started residing in the building from 01.04.1999 and in such circumstance, the completion, has to be on a prior date, from that provided in Section 5A in which circumstance, again, the levy would not be possible. ## **W.P.(C) No. 10539/2015** **-2-** 2. Admittedly, the petitioner obtained a sanction for constructing a residential building, as per Ext.P1 dated 26.06.1997. The validity of the permit was up to 25.06.2000. The petitioner is said to have constructed a building, as seen from Exts.P2 and P3 and the Municipality assessed the building as per Ext.P4. Ext.P4 is dated 07.05.1999. The petitioner was sought to be assessed under the Act, in the year 2002. 3. The proceedings are evident from the counter affidavit filed by the State. The Village Officer is said to have inspected the building on 02.08.1999 and submitted a report, based on which notice was issued to the petitioner under Form III. The petitioner filed a return on 15.10.1999 showing the nature of the building as residential building and the date of completion and occupation as 01.09.1999 and 12.09.1999 respectively. The plinth area of the ## **W.P.(C) No. 10539/2015** **-3-** building, however, was shown as 201 square meters. On the dispute raised with respect to the plinth area, which was stated to be 301.3 square meters by the Village Officer, a notice was issued to the petitioner and the Deputy Tahsildar (Building Tax) inspected the building on 29.01.2000. The measurement revealed a plinth area 297.55 square meters. The building, hence, was assessed under the Act under Sections 5 and 5A. 4. The dispute raised herein is with respect to the luxury tax assessed. The contention raised of the occupation having commenced from 01.04.1999, is not supported by any evidence. In fact, the said contention goes against the petitioner's own submission in the return filed before the Assessing Authority. As is seen from the counter affidavit, the return showed the date of completion as 01.09.1999 and the date of occupation as 12.09.1999. There can be no reliance placed on ## **W.P.(C) No. 10539/2015** **-4-** Ext.P4 also to conclude a completion prior to 01.04.1999, since, the date from which the assessment was made is not evident in Ext.P4. Ext.P4 certificate also has been issued after 01.04.1999. 5. The further contention is that the first floor of the building is used as a commercial space. It is to be noticed that Section 5A speaks of a levy of luxury tax on all residential buildings having a plinth area above 278.7 square meters. The user of such building is not relevant. Admittedly, the petitioner applied for and constructed a residential building. There is no category change effected with the local authority. The issue also is covered by a judgment of this Court, reported in **Ayshakunji v. Tahsildar - 2012 (4) KLT 193** . The mere ground of a part of a residential building being used for a commercial purpose, was held to be inconsequential for determining the luxury tax liability **-5-** ## **W.P.(C) No. 10539/2015** under Section 5A of the Act. For all the above reasons, this Court does not find any reason to interfere with the assessment of luxury tax under Section 5A of the Act. The writ petition would stand dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 7/3/17