JUDGMENT
Manjula Chellur, CJ
State is before us in this appeal aggrieved by judgment of the learned Single Judge dated 12.06.2008 It is not in dispute that when demand of luxury tax for a building consisting of 13 residential apartments came to be made by the Tahasildar concerned, the assessee, owner of the building, approached this Court challenging the same.
2. The charging Section 5A of the Kerala Building Tax Act (the Act for short) contemplates when the luxury tax is leviable and on what measurement it is leviable? Section 5A of the Act reads as under:-
“5A-Charge of luxury tax-(1) 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.
(2) The luxury tax assessed under this Act shall be paid in advance on or before the 31 day of March, every year.”
3. Reading of Section 5A makes it very clear that a sum of Rs. 2000/- has to be paid annually as luxury tax on all residential building having a plinth area of 278.7 square meters or more and completed on or after 01.04.1999 This clearly indicates that the luxury tax is leviable only if a building is completed on or after a particular date so also if the plinth area of the residential building is 278.7 square metres or more. When it comes to the measurement, one has to see how plinth area is defined under subsection (k) of Section 2 which reads as under:-
“2. Definitions--In this Act, unless the context otherwise requires,-
(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.”
4. Subsection (k) refers to what exactly plinth area means and it says if it has more than one floor, aggregate of all the floors have to be taken as plinth area. However, proviso to subsection (k) refers to nature of residential buildings as referred in Explanation (2) to sub-clause(e). Based on Explanation (2) of clause(e) of Section 2 Government Pleader contends that apart from the building consisting of different apartments or flats, the owner must further establish the fact that they are owned by different persons and the cost of construction of the building was made by all such persons jointly, then alone the plinth area of each apartment could be taken as area, so far as charging section 5A of the Act.
5. Learned single Judge, after referring to Section 5A of the Act, has opined that only if measurement of each residential apartment is below 278.7 square meters, there is no necessity to levy luxury tax. If sub-section (k) to Section 2 read along with the proviso, it would clearly indicate that only with reference to meaning of building one has to refer to Explanation (2) to clause (e) and nothing else. For the purpose of calculating the plinth area, if the intention of the legislature was to adopt the entire Explanation (2) to clause (e) even with reference to proviso to 2(k) there was no need to mention the aggregate area where a building has more than one floor. The very reference to more than one floor of a building would explicitly mean, if read along with the proviso that whether the building is a single unit so far as functional use is concerned, or separate units so far as functional utility of the building. If there is one building having more than one floor and they are interconnected with each other, in other words, if one floor is of no use without the existence of another floor, then it has to be considered as one building. Therefore, if there are 13 independent flats or apartments and if each of the building could be used on its own without reference to the other apartment, the question of taking the measurement of another building to calculate the plinth area would not arise.
In that view of the matter, we are of the opinion, the reference to Explanation (2) to clause (e) is made in the proviso to Section 2(k) in the case of a building, the restricted meaning would be building consisting of different apartments or flats and nothing beyond that. Hence, the appeal deserves to be dismissed and accordingly dismissed.