Vijay Hari v. District Collector, Ernakulam; Revenue Divisional Officer, Fort Kochi; Tahsildar, Aluva

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 WP(C) NO. 12478 OF 2016 ``` ## **`PETITIONER:`** ``` VIJAY HARI AGED 38 YEARS, S/O.DAMODARAN, KOZHIPARAMBIL HOUSE, 'NANDANA', THRISSUR VILLAGE, POOTHOLE DESOM, THRISSUR DISTRICT, MANAGING DIRECTOR OF LORD KRISHNA AIRPORT SUITE APARTMENT. ``` ## **`BY ADV. SRI.RAJIT`** ## **`RESPONDENTS:`** - **`1 THE DISTRICT COLLECTOR COLLECTORATE, ERNAKULAM - 682 035.`** - **`2 THE REVENUE DIVISIONAL OFFICER FORTKOCHI, ERNAKULAM - 682 001.`** - **`3 THE TAHSILDAR TALUK OFFICE, ALUVA - 682 037.`** ## **`BY SRI.ARAVIND V MATHEW, GOVERNMENT PLEADER`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C.) No. 12478/2016 2 ## JUDGMENT This writ petition is filed seeking to quash Exts. P2 and P4 orders of assessment passed by the Tahsildar, Aluva dated 22.01.2014 and 02.01.2014 respectively under the Kerala Building Tax Act, 1975 (for short, ‘the Act, 1975’) and Exts. P6 and P8 orders dated 04.11.2014 and 27.05.2015 respectively by the appellate and revisional authorities; for a declaration that the petitioner is entitled to claim the benefit of Explanation 2 to Section 2(e) of the Act, 1975 and that the building is to be assessed separately for the purpose of assessment of building tax and not as a single unit; declare that the imposition of luxury tax on the petitioner from the year 2008 - 2014 by the Tahsildar is illegal and that the petitioner is not liable to pay any luxury tax in respect of any of the apartments and for a further writ of mandamus commanding the District Collector and the Revenue Divisional Officer, Fortkochi to refund the amount remitted by the W.P.(C.) No. 12478/2016 3 petitioner towards the first and second installments of the amount imposed as building tax by the Tahsildar as per Ext.P2 order of assessment. Even though an appeal was preferred before the first appellate authority i.e, Sub Collector, Fortkochi, it was dismissed. The petitioner has also challenged Ext.P8 order passed by the District Collector dated 27.05.2015 invoking the revisional powers conferred under Section 13 of the Act, 1975 whereby the orders of assessment passed by the Tahsildar were affirmed. 2. Brief material facts for the disposal of the writ petition are as follows:- The writ petitioner is a builder engaged in construction activity. According to the petitioner, he had constructed a residential apartment complex comprising of 106 apartments. It is the case of the petitioner that the said 106 apartments were sold to various buyers on the basis of sale agreement executed between the petitioner and individual buyers assigning W.P.(C.) No. 12478/2016 4 the title over the respective apartment and the proportionate undivided share of interest of the property in which the apartment complex is constructed. It is also submitted that the buyers in the apartment have been assigned building numbers by the Panchayat in their individual names and they are granted electricity and water connection in their respective names. The case projected by the petitioner is that the Tahsildar – the third respondent has assessed the entire building complex against the petitioner and thus directed to pay an amount of Rs. 6,21,000/- as building tax considering it as a single unit comprising of 5388.26 square meters. That apart, the petitioner was also assessed to Annual Luxury Tax at the rate of Rs. 2,000/- under Section 5A of the Act, 1975 evident from Ext.P4 order dated 02.01.2014. It is thus challenging the legality and correctness of the orders of assessment and the revisional order passed by the District Collector, the writ petition is filed. W.P.(C.) No. 12478/2016 5 3. Respondents have not filed any counter affidavit. I have heard, the learned counsel for the petitioner, Sri. Rajit and the learned Government Pleader, Sri. Aravind V. Mathew. 4. The question to be considered is whether any interference is required to the orders of assessment and the revisional order passed by the District Collector. Even though various contentions are advanced by the petitioner to demonstrate that the building was constructed by the petitioner on executing agreements with the individual owners, apparently, no documents were produced by the petitioner either before the primary authority or before the appellate and revisional authority. It is also clear and evident from the orders of the first appellate authority i.e., the Sub Collector, Fortkochi that even though opportunity was given to the petitioner to produce documents to show that the construction was carried out after executing agreement with the individual purchasers of the apartment, the W.P.(C.) No. 12478/2016 6 petitioner has failed to produce any such documents before the said authority. It is also evident that even though the representative of the petitioner has made a request to assess the apartments separately since they were constructed after securing funds from the different individuals, the petitioner has not produced any document in order to substantiate the said contention also. In fact from Ext.P8 order passed by the District Collector in revision also it is clear that the District Collector re-appreciated the matter and has arrived at the conclusion that the petitioner is not entitled to get the apartments separately assessed, since the petitioner has not produced any documents to substantiate the said claim. That apart, at paragraph 10 of the writ petition, petitioner has clearly admitted that the petitioner had completed substantial part for the construction of the residential building using his own funds and therefore, it was beyond the capacity of the petitioner to produce the documents sought for by W.P.(C.) No. 12478/2016 7 the respondents. However, in order to substantiate the said contention, petitioner has relied upon the judgment of the Apex Court in **State of Kerala v. A.P.** . **Mammikutty [2015 (10) SCC 632]** 5. The question with respect to the levy of building tax in regard to multi-storied apartments was considered by a Full Bench of this Court in **District Collector, Civil Station, Kakkanad and Others v. V.K. Sreekumari Kunjamma [2011(1) KHC 133 (F.B.)]** and held that a building irrespective of the number of flats or apartments contained therein should be assessed as a single unit and the exceptions are only those stated in Explanations 1 and 2 to Section 2(e) of the Act, 1975. The relevant portion of the judgment reads thus:- - _“2. The learned Single Judge referred to a Single Bench judgment of this court in Lalitha v. State of Kerala reported in 1994 (2) KLT 66 and held that since there is no provision for clubbing plinth areas of different buildings under common ownership for the assessment of building tax, the building involved which is a single_ W.P.(C.) No. 12478/2016 8 _building with two residential apartments, cannot be assessed as one building. The question has to be considered with reference to the relevant provisions in the Kerala Building Tax Act, 1975 (hereinafter called "the Act") which are extracted hereunder:_ _“_ _**S.2. Definitions:-**_ _(e) "building" means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure._ _**Explanation 1:-** In the case of buildings constructed for providing housing accommodation for workers and their families residing in plantations, in pursuance of Section 15 of the Plantations Labour Act, 1951 (Central Act 69 of 1951) or buildings constructed under the Government of India Subsidised Housing Scheme for industrial workers, each part of a building providing or intended to provide accommodation for a worker or a worker and his family shall be deemed to be a separate building._ _**Explanation 2:-** Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building._ _(k) "plinth area" means the area included in the floor of a building and where a building has more than one floor the aggregate area included in all the floors together: Provided that in the case of a building referred to in the Explanation 2 to clause (e), the plinth area shall be calculated separately._ W.P.(C.) No. 12478/2016 9 _**S.5.** Charge of building tax:- (1) Subject to the other provisions contained in this Act, there shall be charged a tax (hereinafter referred to as "building tax") based on the plinth area at the rate specified in the Schedule on every building the construction of which is completed on or after the appointed day._ _**S.7.** Return of completion, etc., of building:- (1) The owner of every building the construction of which is completed, or to which major repair or improvement is made on or after the appointed day shall furnish to the assessing authority a return in the prescribed form within the prescribed period along with a copy of the plan approved by the local authority or such other authorities as may be specified by the Government in this behalf and verified in the prescribed manner and containing such particulars as may be prescribed._ _**S.9.** Assessment:- (1) If the assessing authority is satisfied that a return made by an owner under Section 7 or Section 8 is correct and complete, it shall assess the amount payable by him as building tax or luxury tax on the basis of the return."_ _What is clear from the above provisions is that the subject matter of assessment is the building and the person to be assessed is the owner and the basis of assessment is the plinth area of the building. The charging section makes it clear that the charge of tax is on the plinth area of every building constructed after the appointed day. Section 7 makes it mandatory that the owner of every building the construction of which or the major improvement to which is made on or after the appointed day, shall furnish to the officer a return in the prescribed form for the purpose of assessment. Section 9 says that if return is correct and complete, the Assessing Officer shall complete assessment_ W.P.(C.) No. 12478/2016 10 _based on return filed. What is clear from these provisions is that assessment has to be completed for each and every building constructed and for this purpose, the owner of the building should file as many returns as the number of buildings he has constructed. Therefore, separate building tax assessments have to be made in the name of very same person for all the buildings constructed or repaired by him which attract liability. Since the charging section specifically speaks about levy of tax based on the plinth area of every building constructed, separate assessment is called for in the name of the same owner for the plinth area of every building constructed by him. In the scheme under the Central Income Tax Act, charge of tax is on the total income of a person from all sources and under all heads which are clubbed together for assessment. However, for the purpose of assessment of building tax, there is no provision in the Act to make only single assessment for every financial year in respect of plinth area of all buildings constructed by a person. In the absence of any provision in the Act authorising clubbing of plinth areas of different buildings or common assessment in the hands of a single person for all buildings constructed by him, there cannot be single building tax assessment for all the buildings constructed by him. So much so, the statutory scheme authorises separate assessment for each and every building in the name of the same owner. In other words, same person can be subject to separate assessment for building tax for each and every building constructed by him. This proposition of course applies to independent buildings constructed by a man. However, the question to be considered is whether this principle laid down in the decision in Lalitha v. State of_ W.P.(C.) No. 12478/2016 11 _Kerala referred above and followed by the learned Single Judge applies for assessment of two flats or multi- flat apartment building constructed and owned by the same person._ _3. The question above referred has to be answered with reference to the definitions of "building" and "plinth area" which is the basis of charge under the charging section. "Building" as defined under the main clause (e) of Section 2 covers all buildings in the literal sense and besides it, it includes every structure or part of a building. The plinth area which is the basis of assessment under Section 2(k), takes in the floor area of the building and where the building has more than one floor, the aggregate area included in all the floors have to be taken together. In other words, if a building owned by the person consists of several floors, the same has to be assessed as a single unit and the assessment has to be on the total plinth area of the building. Going by the definition of "building" contained in Section 2(e) read with definition of "plinth area" under Section 2(k) and the charging section, Section 5, a multi-storied building or a building with different residential or commercial apartments has to be assessed as a single unit on the total plinth area which include the plinth area of all the floors of the building. However, the assessment has to be necessarily in the name of the owner or owners of the building, if it is jointly owned by several persons. Two exceptions are provided in the Act against single assessment of multi-flat apartment, whether residential or commercial. Explanation (1) of Section 2(e) deals with assessment of buildings constructed for providing accommodation to workers and their families residing in plantations and also buildings constructed under_ W.P.(C.) No. 12478/2016 12 _the Government of India Subsidised Housing Scheme for industrial workers. In the case of these buildings, each part of the building providing or intended to provide accommodation for a worker or family of a worker shall be deemed to be a separate building. In other words, but for this exception, even though a building with several residential units providing accommodation to different workers or families of different workers is assessable as a single building under the main clause Section 2(e), the fiction available under Explanation 1 of Section 2(e) provides for treatment of each such residential unit within a building as a separate building for assessment. In other words, but for this exception even apartment buildings, whether line buildings or multi-storied buildings providing accommodation to employees in plantations or industries, would have been assessed as a single building in the name of the owner-employer. The second exception providing for separate assessment of different flats or apartments in the same building are those buildings constructed by several persons sharing the cost of construction and owning the building as flats or apartments among themselves. Here again, the exception provides for separate assessment of each flat or apartment of a multi-flat or multi-apartment building in the name of each owner of the flat or apartment. It is very common that several persons pool their resources and construct buildings for commercial or residential purposes and share the building each one taking separate flat or apartment. By virtue of the provision contained in Explanation 2, each and every apartment or flats comprised in the single building constructed by sharing the cost of construction by the several owners jointly shall be deemed_ W.P.(C.) No. 12478/2016 13 _to be separate buildings for assessment. If the Explanation was not there in the statute, the building consisting of different apartments or flats owned by several persons and constructed by sharing the cost would have been assessed as a single building under the main clause (e) in the joint names of all of them._ _4. What is clear from the above provision is that a building irrespective of the number of flats or apartments contained therein, should be assessed as a single unit and the exceptions are only those stated in Explanations 1 and 2 stated above. A Division Bench of this court in Shenoy Real Estates (P) Ltd. v. Tahsildar reported in 2004(1) KLT 133 held that sale of flats by a builder after completion of construction of apartment building to different owners will not justify separate assessment of each flat under Explanation (2) to Section 2(e) of the Act. What is to be noted from this judgment is that unless apartment building is constructed by the joint owners by sharing the cost, each and every apartment cannot be assessed as a separate building, no matter the building after construction was sold by the owner to different persons. In this case different ownership for the building happens after completion of construction of the building and, the sale made thereafter to different owners is immaterial for the purpose of assessment. In fact, the incidence of tax is on completion of construction of the building and it is immaterial as to whether the owner retains the building or transfers the same in full or in part or in pieces after completion of construction. Separate assessment of each and every flat is called for only in respect of the constructions covered by Explanations (1) and (2) of Section 2(e)._ W.P.(C.) No. 12478/2016 14 _5. In the result and in view of our findings above, we hold that the single building consisting of two separate flats constructed by the respondent has to be assessed as a single building as the building does not fall within the Explanation (1) or (2) of Section 2(e). We, therefore, allow the appeal by vacating the judgment of the learned Single Judge and by restoring the single assessment of the building comprising of two residential units.”_ 6. Therefore, on a conjoint reading of Explanation 2 to Section 2(e), Section 5, Section 7 and Section 9 of the Act, 1975, makes it clear that the crucial date to be taken note of is the date of assessment of the building complex. Here in this case, admittedly the construction of the building was completed by the petitioner using his own fund and apparently, when the assessment was made by the Tahsildar, the petitioner could not establish that as on the date of the assessment, the apartments are owned by different individuals. In that view of the matter, it is clear that the issue raised by the petitioner in this writ petition is clearly covered by the Full Bench judgment of this Court in **V.K. Sreekumari Kunjamma** (supra). W.P.(C.) No. 12478/2016 15 This question was again considered by a Division Bench of this Court in **Varghese P.D. and Others v. State of Kerala and Others [2013(2) KHC 489 (DB)]** and held that in order to claim benefit of the Explanation it must be proved that the building consists of different apartments/flats owned by different persons and the cost of construction of the building was made by all such persons jointly, - since flats were constructed as ready to occupy flats and in the absence of convincing evidence that construction was carried out based on the contributions made by the owners of the flats, no benefit of Explanation 2 to Section 2(e) of the Act, 1975 can be granted. 7. Taking into account the aforesaid legal aspects, I do not think that the petitioner has made out any case so as to interfere with Ext.P2 order of assessment so far as concerning the building tax in contemplation of Section 5 of the Act, 1975 and the consequential appellate, and revision orders. However ## W.P.(C.) No. 12478/2016 16 in my considered opinion, the petitioner has a case in respect of the luxury tax contemplated under Section 5A of the Act, 1975 in so far as Exhibit P4 order of assessment is concerned, which reads thus:- _“ -_ _**5A. Charge of luxury tax.** (1) Notwithstanding anything contained in this Act, there shall be charged a luxury tax based on the plinth area at the rate specified in Schedule II, annually on all residential buildings having a plinth area of above 278.7 square metres completed on or after the 1st day of April, 1999.._ _(2) The luxury tax assessed under this Act shall be paid in advance on or before the 31st day of March, every year._ _(3) There shall be a rebate of twenty per cent of the total Luxury Tax for those who pay the same in lump for five years or more.”_ Therefore, it can be seen that the provision starts with a non-abstante clause and notwithstanding anything contained in Act, 1975, there shall be charged a luxury tax, of Rs.2,000/- (Rs.4,000/- with effect from 01.04.2014) annually on all residential buildings having a plinth area of 278.7 square metres or more and completed on or after the 1[st] day of April, 1999. 8. So far as the facts of the instant case is concerned as I have pointed out earlier, it is admitted that the building was constructed by the petitioner W.P.(C.) No. 12478/2016 17 without any contribution from the purchasers of the individual apartments. Whatever that be the annual luxury tax in contemplation of Section 5A of the Act, 1975 to be paid by the builder annually can only be till such time, the entire structure or apartments which are not sold of, continues in the ownership of the builder. In fact in that regard, the judgment of the Apex Court in **A.P. Mammikutty(supra)** has relevance to the context so far as the luxury tax is concerned imposed on the petitioner as per Ext. P4 demand, whereby the petitioner is to remit Rs. 2,000/- every year before the 31[st] March. The Apex Court in **A.P.Mammikutty** has considered the definitions provided to ‘plinth area’ as per Section 2(k), ‘residential building’ as per Section 2(l) and Section 5A of the Act, 1975, has held as follows:- _“14. In this context, it is imperative to analyse what is meant by “residential building”. The definition in clause 2(l), means a building or any other structure or part thereof used for residential purpose and house or outhouse or garage appurtenant to a building for more_ W.P.(C.) No. 12478/2016 18 _beneficial enjoyment. It excludes hotels, boarding places, lodges and the like. Thus, the expression “residential building” cannot be interpreted without reference to the term “building” and Explanation II to Section 2(e) of the Act. Therefore, each residential building owned by single owner would be subjected to luxury tax, if it has the plinth area which exceeds 278.7 sq.mts. It makes no difference whether the residential building consists of one floor or it is two-storied or three-storied or consists of multiple flats or apartments. The entire plinth area in the residential building owned by a singular owner is required to be aggregated. It is noticeable that Section 5A does not refer to aggregate plinth area of all the floors. The intention of the legislature is apparent that if a person is the owner of the plinth area of 278.7 sq.mts or more in one building, even if it consists of separate or distinct apartments, he would be liable to pay the luxury tax under Section 5A of the Act. It also becomes further clear when the definition of “plinth area” in Section 2 (k) is properly appreciated. It clearly postulates that “plinth area” means the area included in the floor of the building and where building has more than one floor aggregate area included in all the floors are taken together. The proviso to the said definition lays down that in case of a building referred to in the Explanation II to clause (e), the “plinth area” shall be calculated separately. Thus, Section 2(k) has an insegragable nexus with the definition of “building”. Explanation II to Section 2(e) which defines “residential building” only conveys about the building meant for residential purpose and what it_ W.P.(C.) No. 12478/2016 19 _includes. Section 5A is the charging Section and as has been stated earlier, it commences with a non-obstante clause. It determines the annual luxury tax on all residential buildings having a plinth area of 278.7 sq. mts. or more. It provides a date for completion that is 1st April 1999. Though, it does not provide for aggregate it refers to residential building definition of which refers to a building. Section 2(k) defines “plinth area” of the building. Section 5A also includes “plinth area”. Though the term “aggregate” is not mentioned but the words therein are buildings having plinth area and in that context one is required to scan and analyse the meaning of the term “building” and the “plinth area” as defined under Section 2(e) and 2(k) respectively. “Plinth area” as defined clearly provides that when one building has more than one floor, the aggregate area includes all the floors. To give an example, a building consisting of four storeys belongs to a single owner, the aggregate of all the floors are to be included for calculation of the plinth area and thereby the computation of the luxury tax has to be determined as provided under Section 5A. Be it noted, the proviso to Section 2(k) clearly stipulates that if a building as referred falls under Explanation II to Section 2(e), the plinth area shall be calculated separately. The Explanation II refers to different apartments or flats owned by different persons. It also states that the cost of the construction of the building is to be met by all such persons jointly. This Explanation, as noted before, is required to be appositely understood. The learned counsel for the state would submit that if there is initial_ W.P.(C.) No. 12478/2016 20 _booking and the persons have contributed for the construction definitely there shall be separate computation. The Explanation II has to be read with Section 5A which starts with a non-obstante clause. Section 5A as has been mentioned before refers to “residential building” having plinth area 278.7 sq. mts. or more and, therefore, the said provision also takes note of this definition. In view of the above, the contention advanced by the learned counsel for the State is difficult to accept. The definitions have to be given a proper construction. There can be a case where the owner erects a multi-storied building consisting 10 floors. He builds it at his own cost and thereafter he sells the apartments or flats to 10 persons and in that event he ceases to be the owner of the building. The 10 purchasers become the owners of flats and in such a situation it will lead to an absurdity because one single person who once owned the entire building or several apartments, though has ceased to be the owner in law yet is asked to pay the luxury tax solely on the ground that at the time of construction there was no contribution by the purchasers or to put it differently there had been no prior booking. This is not the intention. The Explanation II to Section 2(e) has to be read harmoniously with proviso to Section 2(k) and Section 5A of the Act. The intention of the legislature as gatherable is that ownership of different flats and the cost of construction of building are met by all such persons. The meeting of the cost jointly is not to be narrowly construed to mean that there has to be an investment before the commencement of the_ W.P.(C.) No. 12478/2016 21 _construction of the building. The persons who purchase afterwards they really share the value of the construction cost apart from the profit margin due to the builder or the seller. Unless such an interpretation is placed, the original owner of flats when he ceases to be the owner of the building or the purchaser of a small apartment less then 278.7 square meters would still be liable to pay luxury tax. Such an interpretation would lead to absurdity._ _15. In our considered opinion, the principle of purposive interpretation of the provision has to be adopted and when such a construction is placed, it serves the legislative intent. To elaborate, a person may have a three- storied building and he owns it, then there has to be different computation as per the main part of Section 2(k) and for that it has to be calculated as is done by the revenue authority. Once he ceases to be the owner, he will not be liable to pay the luxury tax. But as long as he continues to be the owner, as per Section 5A, he will be liable to pay the luxury tax for all floors/apartments subject to the cap provided under Section 5A of the Act. In this context we may refer to the decision in_ _**State of T.N. v. Kodaikanal Motor Union (P) Ltd. [(1989) 3 SCC 91]** wherein this Court, after referring to_ _**K.P. Varghese v. ITO [(1981) 4 SCC 172]** and_ _**Luke v. IRC [(1964) 54 ITR 692]** observed thus:-_ _“The courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often_ W.P.(C.) No. 12478/2016 22 _than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As Judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye ‘some’ violence to language is permissible.”_ _16. In_ _**Keshavji Ravji and Co. v. CIT [(1990) 2 SCC 231]** it has been held by this court that when in a taxation statute where literal interpretation leads to a result that does not sub-serve the object of the legislation another construction in consonance with the object can be adopted._ _17. In the case at hand, as is noticeable, the learned Single Judge had remanded the matter to the revenue authority and the Division Bench has declined to interfere. The Division Bench has applied the functional unit test. We do not accept the same. The learned Single Judge, as we have reproduced a paragraph hereinbefore, has opined that when the plinth area of any residential apartment is above 278.7 sq. mts., then the authority can demand luxury tax for such apartment or flat. Be it noted, the learned Single Judge has held_ W.P.(C.) No. 12478/2016 23 _that even if the person is the owner of the entire building the computation would be apartment-wise. The said analysis is also incorrect. We have given purposive interpretation to Explanation II as it has to be read with Section 5A of the Act. When the owner parts with the building each apartment will be segregable for the purpose of luxury tax. If he remains the owner for the whole or part then he will be liable to pay for the plinth area in respect of the flats or apartments that is retained by him subject to the cap as envisaged under Section 5A of the Act. If he sells away the entire building then it has to be flat/apartmentwise calculation/computation, for every apartment owner is different than the others. Thus, the plinth area would be different. To clarify further, if a singular person purchases three flats, he will be liable on the basis of aggregate plinth area subject to the cap envisaged under Section 5A of the Act._ _18. In view of the aforesaid, we allow the appeal and set aside the order of the revenue authority and that of the High Court in writ petition and the writ appeal, and remand the matter to the revenue authority to compute the luxury tax in the manner which we have clarified hereinabove. There shall be no order as to costs.”_ 9. In that view of the matter, I am of the considered opinion that the petitioner would be liable to pay luxury tax to the residential building in contemplation of Section 5A of the Act, 1975, till such W.P.(C.) No. 12478/2016 24 time, he retains the ownership of the building exceeding a plinth area 278.7 square meters. Therefore, the levy imposed under Section 5A of the Act, 1975 as per Ext.P4 would be liable to be paid by the petitioner only till such time he is retaining the ownership of the building exceeding the plinth area of 278.7 square meters. Accordingly, the writ petition is partly allowed holding that the liability of the petitioner for payment of luxury tax for the apartment in question would be confined to the period the petitioner held or holds an area exceeding the plinth area prescribed under Section 5A of Act, 1975. Sd/- **SHAJI P. CHALY JUDGE** DCS/17.07.2022 W.P.(C.) No. 12478/2016 25 ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** ``` P1TRUE COPY OF THE SALE AGREEMENT EXECUTED IN FAVOUR OF SRI SUNIL VELAYUDHAN WITH REGARD TO FLAT NO J OF THE GROUND FLOOR OF THE APARTMENTS ``` ``` P2TRUE COPY OF THE ORDER OF ASSESSMENT NO C3-7453/2011 DTD 22/12/2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P3TRUE COPY OF THE NOTICE OF DEMAND NO C3-7453/2011 DTD 30/12/2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P4TRUE COPY OF THE ORDER NO C3-7453/11 DTD 2/1/2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P5TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P6TRUE COPY OF THE ORDER NO G-2818/2014 DTD 4/11/2014 OF THE 2ND RESPONDENT P7TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT P8TRUE COPY OF THE ORDER NO B10- 20174/15/K DIS DTD 27/5/2015 OF THE IST RESPONDENT ```