Office Attached To Residential House Of Advocate Cannot Be Exempted While Calculating Plinth Area For Computing Luxury Tax: Kerala High Court

It is to be noted that as per Section 5A of the Kerala Building Tax Act, 1975, a luxury tax is charged on a residential building if its plinth area exceeds 278.7 square meters. The plinth area of a residential building is calculated as per Section 6 of the Act. The proviso to Section 6 states that the plinth area of a garage or any other erection or structure appurtenant to a residential building used for storage of firewood or for any non-residential purpose shall not be calculated while determining the plinth area for the imposition of the luxury tax.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. applied the 'ejusdem generis' rule to state that the legislative intent was only to exclude non-residential rooms used for storage of firewood or garage while calculating plinth area for determination of luxury tax.

“…the contention of the appellant that proviso to Section 6 exempts from the calculation of the plinth area of residential building, a garage or any other erection or structure appurtenant to a residential building used for storage of fire wood or for any non-residential purpose and hence the study/office of the appellant who is an Advocate in the residential building qualifies within the said exemptions in the proviso, cannot be countenanced”, stated the Court.

The appeal was filed by an advocate against the order of a single judge stating that the plinth area of the study/office room attached to his residential house should be exempted while calculating the plinth area for determination of luxury tax under the Kerala Building Tax Act, 1975.

The luxury tax was imposed upon the residential house of the appellant calculating its total plinth area as 292.07 square meters.

The appellant contended that the assessing officer should not have calculated the plinth area of a room adjacent to his residential house which is used for study and office purposes for imposition of luxury tax. He relied upon the proviso to Section 6 of the Act to state that it was open to interpretation. He stated that the intent of the legislature was to give exemption to spaces or rooms within a residential building that were used for non-residential purposes. The appellant thus contended that the study/ office room of an advocate used for non-residential purposes and has to be given an exemption while determining the plinth area for the calculation of luxury tax.

The Government Pleader submitted that the appellant interpreted the section beyond the statutory intention. He stated that the terms in proviso to Section 6 was only meant to exclude rooms used for storage of firewood or garage etc. He applied the rule of ejusdem generis to state that the study/office room falls beyond the exempted category of spaces envisaged by the proviso to Section 6 of the Act.

The Court on interpreting the rule of ejusdem generis stated that words cannot be stretched to indicate a different legislative intent. It said, “Applying the said dictum laid down by the Supreme Court to Section 6 of the Act, it can be discerned that the learned Single Judge has correctly held that the words 'for any non-residential purpose' used in the proviso has to be read 'ejusdem generis' to the preceding words, i.e., 'use for storage of firewood, garage etc.' and that it cannot be stretched so as to include a study or office room.”

Accordingly, the Court dismissed the writ appeal.

Counsel for Appellant: Advocates R.Suraj Kumar, Sajith C.George, Anjana R.S., Sunil J.Chakkalackal, N.G.Sindhu And Sunitha G.

Counsel for Respondents: Senior Government Pleader Advocate K Shamsudheen

Citation: 2024 LiveLaw Ker 318

Case Title: Abdul Jabbar v State of Kerala

Case Number: WA NO.273/2024

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