SHENOY REAL ESTATES PRIVATE LTD Vs. TAHSILDAR
HIGH COURT OF KERALA
Shenoy Real Estates Private Ltd
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(1.) THE appellant/writ petitioner company incorporated for development activities purchased 11 cents of land from one K. Sreenivasa Pai. Thereafter several apartments
were constructed in the plot and later the apartments were sold to 7 persons. But the
building tax in terms of the Kerala Building Tax Act of the building was assessed in
favour of the appellant. The appellant/petitioner disputes it contending that the building
being a multi apartments structure owned by different persons, Explanation.2 to S.2(e)
should have been applied for the purpose of assessment of building tax. In other words,
the building tax shall be assessed following the yardstick in the Act in respect of each of
the apartment owners separately rather than on the appellant who had undertaken the
construction of the entire apartment complex.
(2.) IT is an admitted fact that the appellant had transferred the ownership of each of the apartment to 7 persons separately, later than the completion of the work of the entire
complex. With this factual position, we will read Explanation (2) to S.2(e) which defines
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.
Here, the ownership of each of the flat came to the different individual occupier later than the completion of the construction and the cost of construction was not jointly met
by all of them, but by the appellant - builder. Necessarily, the apartment complex will
not come within Explanation.2 to contend that each of the apartment will be a building
for the purpose of assessment of tax.
(3.) IT was contended, relying on the decision of a learned Single Judge of this Court reported in Balu v. State of Kerala, 1994 (2) KLT 42, that in a similar situation, this court
had held that each of the apartment is a building to come under Explanation.2 to S.2(e)
of the Act. But the fact situation here is different because, in that case, a firm undertook
construction works and accordingly entered into agreement for construction of flats for
them and according to the plan and layout and design prepared by it. The outlay on this
construction was provided by these persons, and after completion of the construction
the undivided interest in the land was transferred to owners of the flats by separate
deeds of sale ............ There, each of the occupier was the owner of the flat as the
outlay and design were prepared by the firm. What remained was only the transfer of
the land in which the flats were constructed. That was the factual difference in that
case. Such situation does not arise here.;
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