JUDGMENT

Ramachandran Nair, J.

The specific question referred to the Full Bench by a Division Bench of this court is whether a building with two residential apartments owned by the same person should be assessed as a single building in his name as the owner or should be assessed as two buildings treating each residential apartment as a separate building in the name of the same owner. Considering the importance of the issue and the divergent opinions expressed by different Benches of this court, the Division Bench referred the matter for decision by Full Bench. We have heard Government Pleader appearing for the appellant and counsel appearing for the respondent.

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 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.

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 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 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 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 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).

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.