Kerala High Court
B.Ramdas Shanbhogue vs The Tahsildar/Assessing Authority on 24 May, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934
WP(C).No. 24454 of 2009 (B)
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PETITIONER(S) :
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B.RAMDAS SHANBHOGUE,
S/O. B.NARAYANA SHANBHOGUE, BADIADKA HOUSE,
BADIADKA VILLAGE, P.O.PERDALA, KASARGOD DIST.
BY ADV. SRI.SURESH KUMAR KODOTH
RESPONDENT(S) :
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1. THE TAHSILDAR/ASSESSING AUTHORITY
(UNDER THE KERALA BUILDING TAX ACT)
KASARAGOD.
2. THE REVENUE DIVISIONAL OFFICER,
KASARAGOD.
3. THE DISTRICT COLLECTOR, KASARGOD.
4. STATE OF KERALA,
REP. BY SECRETARY TO THE GOVERNMENT,
FINANCE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
BY SRI.RINNY STEPHEN CHANAPARAMBIL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMV
WP(C).No. 24454 of 2009 (B)
APPENDIX
PETITIONER(S) EXHIBITS :
P1. : COPY OF THE ORDER OF ASSESSMENT ISSUED BY THE 1ST
RESPONDENT.
P2. : COPY OF THE MEMORANDUM OF APPEAL.
P3. : COPY OF THE RECEIPT DATED 24.05.2006.
P4. : COPY OF THE DOCUMENT NO.12 MENTIONED IN EXT.P2.
P5. : COPY OF THE DOCUMENT NO.13 MENTIONED IN EXT.P2.
P6. : COPY OF THE ORDER DATED 17.09.2007 OF THE 2ND RESPONDENT.
P7. : COPY OF THE REVISION PETITION BEFORE THE 3RD RESPONDENT.
P8. : COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A.TO JUDGE
AMV
ANTONY DOMINIC, J.
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W.P.(C) No.24454 of 2009
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Dated this the 26th day of November, 2012.
JUDGMENT
The petitioner and his brother owns a part of land where according to him, he, his brother and their father constructed a building. Ground floor of the building was completed in the early 1990s. Thereupon the building was assessed for the purpose of building tax and Rs.9,000/- was levied. They constructed first floor. With the additional construction made a part of the building is residential and part is commercial. On completion of the additional construction building tax was assessed by Ext.P1 order and tax was quantified at Rs.73,800/- less the tax already paid. Contending that the building is owned by three different people and it should be assessed separately, appeal was filed. That was rejected by Ext.P6 order. Revision was also rejected by Ext.P8 order. It is in these circumstances the Writ Petition is filed.
2. As far as the plea that the building is owned by three different people and, therefore, should be assessed separately is concerned, a common structure with different apartments can be separately assessed W.P.(C) No.24454/2009 2 only if the building satisfies the requirements of Section 2(e) and its second Explanation. As per the Explanation No.2, where a building consists of different apartments or different 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. Therefore, to justify a separate assessment, there must be both ownership by different people and the cost of construction should have been met by all such persons jointly. Although the petitioner claims ownership of the building by different people, there is no material whatsoever either before the assessing authority or before the appellate or revisional authority or even before this court that the cost of construction of the building was met by its owners jointly. If that be so, petitioner failed in proving that the building satisfies the requirement of Section 2(e) read with its second Explanation. If that be so, claim of the petitioner that the building should have been assessed separately cannot be accepted.
3. Petitioner then contended that the building is partly residential and partly commercial and, therefore, its assessment as "other buildings" is illegal. Schedule to the Kerala Building Tax Act provides W.P.(C) No.24454/2009 3 separate rates of building tax for residential buildings and other buildings. If a building is not completely a residential building, the building can be categorised only as an "other building". However, part of the building which is exclusively used for residential purpose can be assessed as residential building. It has been so held by this court in SUKUMARAN Vs. TAHSILDAR reported in 1999(2) KLT 373. In such circumstances, it is for the Assessing Authority to consider whether part of the building is used for residential purpose and if it is so, the assessment requires to be modified treating that part of the building which is used for residential purpose as a residential building and tax shall be assessed on that basis. Petitioner will produce a copy a of this judgment before the first respondent who shall inspect the building in question and on such inspection if it is found that any part of the building is used for residential purpose, the assessment will be suitably modified in the light of the observations made above.
Writ Petition is disposed of as above.
ANTONY DOMINIC Judge pms