Anil K. Narendran, J.
The appellants are the petitioners in W.P(. C)No.3296/08. They have filed the said Writ Petition seeking a writ of certiorari to quash Exts.P10 order and P12 demand notice and for a declaration that their buildings bearing Nos.23/328A and 23/328 B are distinct and separate and are not liable for luxury tax under Section 5A of the Kerala Building Tax Act, 1975. The learned Single Judge by the judgment under appeal declined to interfere with the said order and demand notice. It was further clarified that if the appellants satisfy the entire outstanding liability towards luxury tax under Section 5A of the said Act, within one month from the date of receipt of a copy of the judgment, no interest shall be realised from them. If the payment is not effected within the time as aforesaid, the respondents were directed to proceed with further steps for realisation of the entire amounts with interest and such other amounts, if any, by resorting to appropriate steps in accordance with law. It is aggrieved by the judgment of the learned Single Judge, the appellants are before us in this Writ Appeal.
2. We heard the arguments of the learned counsel for the appellants and also the learned Senior Government Pleader appearing for the respondents.
3. Appellants are husband and wife. They have constructed a building on the basis of Ext.P1 building permit, which is having a total plinth area of 136.49 sq.m. On completion of the construction, the same was subjected to assessment for building tax under Section 5 of the Act and as per Ext.P2 assessment order the plinth area was fixed as 174.33 sq.m. and the tax demanded was satisfied by the appellants.
4. Few years thereafter, the appellants wanted to construct the first floor, for which an application was submitted before the concerned local authority. After considering the said application, Ext.P3 building permit was granted to the appellants on 31.3.1999. The case of the appellants is that the said portion having a plinth area of '113.82' sq.m. has been separately constructed and numbered by the local authority, giving a different building number and that a separate electric connection has also been provided to the said portion. As borne out from Ext.P6, the contention raised by the appellants before the third respondent was that the said portion exclusively belonged to the second appellant i.e., the wife of the first appellant and that under no circumstance, could both these buildings be clubbed together for the purpose of assessment.
5. Section 2(e) of the Kerala Building Tax Act reads as follows:
“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;
Going by explanation 2 of Section 2(e), 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.
6. In District Collector Vs. Sreekumari Kunjamma (2011 (1) KLT 248) a Full Bench of this Court held that, separate assessment of each and every flat is called for, only in respect of constructions covered by Explanation 2 of Section 2(e) of the Act. Following the Full Bench judgment referred to above, a Division Bench of this Court in Varghese P.D. and others Vs. State of Kerala and others (2013 (2) KLT 831) held that, in order to claim the benefit of explanation 2 to Section 2(e) of the Act, it must be proved that the building consists of different apartments/flats owned by different persons and that the cost of construction of the buildings was made by all such persons jointly. Only if this condition is fulfilled, it can be treated as separate building for the purpose of assessment of tax.
7. Section 5A of the Act deals with Charge of building tax. As per Sub Section (1) of Section 5A of the Act, as it stood prior to the Kerala Finance Act 2014, notwithstanding anything contained in this Act, there shall be charged a luxury tax of two thousand rupees annually on all residential buildings having a plinth area of 278.7 square meters or more and completed on or after the 1st day of April, 1999. A Full Bench of this Court in State of Kerala v. Abdulla (2012 (1) KLT 178) has held that, Section 5A of the Act applies to residential buildings, the plinth area of which after extensions or additions made after 1.4.1999 reach or exceed 278.7 sq.mts. The Full Bench further held that, the plinth area of building as a whole has to be considered with additions or extensions made after 1.4.1999.
8. The contention of the appellants that, the total plinth area of the building does not exceed 278.7 sq.mts. has been rejected in Et.P6 order, after measuring the building in their presence. The said finding in Ext.P6 cannot be interfered with by this Court, in the absence of any vitiating circumstances pointed out by the appellants. The further contention of the appellants is that, since the Municipality has numbered the ground floor and the first floor of the building independently and the said buildings are having separate electric connections, the plinth area of both floors should not be taken into account for charging luxury tax under Section 5A of the Act. We are unable to agree. Going by explanation 2 to Section 2(e) of the Act, in order to contend that the ground floor and the first floor of the building should not be taken into account for charging luxury tax, the appellants will have to establish that those different floors are owned by different persons, and further the cost of construction was made by all such persons jointly. Exts.P1 and P3 building permits are in the joint name of the appellants. There is absolutely no materials to show that the cost of construction of the first floor was made by the second appellant. In the absence of any documents to show that the ground floor and first floor of the building are owned by different persons and that the cost of construction was made by all such persons jointly, the respondents can not be found fault with in treating the entire building as a single unit.
9. In such circumstances, the reasoning of the learned Single Judge in the impugned judgment in upholding Ext.P10 order and Ext.P12 demand notice cannot be found fault with. We find absolutely no ground to interfere with the judgment of the learned Single Judge.
Writ appeal is dismissed accordingly.
Sd/-
ANTONY DOMINIC, Judge jes Sd/-
ANIL K. NARENDRAN, Judge