M/S. Gsg Builders And ... vs The Ghmc
2022 Latest Caselaw 6344 Tel

           THE HONOURABLE SRI JUSTICE M.LAXMAN

     CIVIL MISCELLANEOUS SECOND APPEAL No.23 of 2017

JUDGMENT:

1. The present second appeal has been directed against the

judgment and decree dated 06.06.2017 in M.A.No.135 of 2014 on

the file of the Chief Judge, City Small Causes Court, Hyderabad,

wherein and whereby, the revised assessment order dated

29.03.2014 issued by the respondent herein was upheld and

consequently, appeal was dismissed. Hence, the present second

appeal is at the instance of the appellant.

2. Mr. B. Chandrasen Reddy, learned senior counsel for the

appellant submitted that the main grievance of the appellant is that

in the reassessment proceedings, the respondent has not

considered the true plinth area, which alone is taxable. According

to him, the plinth area covered under taxation was more than the

sanctioned plinth area, which is reflected in the approved plan.

The assessment authority while calculating the plinth area

included common areas like lift, lobby, stair case and cutouts and

imposed tax, which is contrary to Rule 7 of Hyderabad Municipal

Corporation (Assessment of Property Tax) Rules, 1990.

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3. The second grievance put forth by the learned counsel for the

appellant is that the respondent levied tax on the parking area with

effect from 01.10.2005. Whereas, as per new policy, the imposition

of tax on parking areas has come into effect only from 01.10.2007.

Prior to that there was no tax on parking areas. The tax rate for

parking areas is only at Rs.2.00 per sft, but Rs.2.50 per sft was

charged by the respondent, which is contrary to tax law.

4. The third and last grievance of the appellant is that while

taxing the appellant's premises with regard to tin shed area in the

upper fourth floor, to an extent of 4,951.88 sft, the respondent

imposed tax treating the same as Reinforced Cement Concrete

(hereinafter referred to as 'RCC') roof at Rs.17/- per sft, whereas

the said area falls under Manglore tilled roof or Asbestos roofed or

G.I. roofed buildings, which is only taxed at Rs.1.40 per sft, in

terms of proceedings dated 01.02.2008 issued by the assessment

authority.

5. According to the learned counsel for appellant all the above

aspects were not considered by the Court below while disposing of

the appeal and the impugned judgment and decree suffers from

illegality.

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6. Mr. K. Siddhartha Rao, learned standing counsel for

GHMC/respondent, contended that while taxing the area, the

plinth area was taken with reference to sanctioned plan only and

there was no deviation from the sanctioned plan. In the sanctioned

plan, cutout area was already excluded and same was excluded

while imposing the tax. He also submitted that there is no

question of common area in a single owner building. He further

contended that stair case area and area used for lift and lobby were

included in the plinth area, in terms of definition of plinth area as

defined by Bureau of Indian Standards in 1966.

7. Learned standing counsel for respondent has fairly admitted

that tax on parking area has come into effect from 01.10.2007 only

and in the reassessment order it was wrongly assessed from

01.10.2005 to 30.09.2007.

8. It is also the contention of the learned standing counsel for

respondent that tax for the upper fourth floor was based on

sanctioned plan. As per sanctioned plan, upper fourth floor was

sanctioned with RCC roof. He submitted that the respondent had

no evidence as well as information that the said roof was built with

tin shed.

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9. In the light of the above submissions made by both parties

the following point emerged for consideration before this Court:

"Whether the impugned judgment and decree of the Court below suffers from any illegality, so as to raise the question of law, on account of non consideration of various issues raised?"

Point:-

10. There is no dispute that the tax is levied on the annual rental

value of the building which is fixed on the basis of plinth area of

the building. The word 'plinth area' is not defined under Tax Laws

and GHMC Act, 1955. Therefore, we have to fall back to general

definitions given under Bureau of Indian Standards in the year

1966 and the same is being followed in calculating the plinth area

and carpet areas. According to the said definition, plinth area

includes carpet area, wall area, lift, shaft openings etc. Further,

plinth area also includes stair case, protected open verandah and

balcony protected by projection. If the said definition is adapted,

the contention of the learned counsel for appellant with regard to

inclusion of stair case, lift and lobby areas, has not merit.

Therefore, the same is rejected.

11. It is also contended by the learned counsel for appellant that

while calculating the plinth area, the cutout areas were included

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and same is disputed by the learned standing counsel for

respondent. It is not in dispute by the respondent that plinth area

is with reference to the sanctioned plan only. It is also contended

that in the sanctioned plan cutout areas were excluded. The

evidence from the appellant before this Court is not clear that

cutout areas were included. However, it is made clear that while

taxing plinth area the cutout area has to be excluded in terms of

sanctioned plan. This was not considered by the Court below.

With this clarification, this contention is answered.

12. Coming to the second grievance, it is not in dispute that prior

to 01.10.2007 there was no tax on parking area. From 01.10.2007

only parking tax is imposed at Rs.2.00 per sft. In the present

assessment proceedings, the parking area tax was imposed from

01.10.2005 to 30.09.2007. Therefore, the collection of Rs.2.00 per

sft from 01.10.2005 to 30.09.2007 is not tenable and the same is

liable to be set aside.

13. The last contention of the learned counsel for appellant is

that the upper fourth floor was covered with tin shed, which falls

under category of Manglore tilled roof or Asbestos roofed or G.I.

roofed buildings, in terms of notification proceedings dated

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01.02.2008 and under that category tax payable is only Rs.1.40 per

sft. The tax per sft for RCC roof building was Rs.17.00 per sft. It is

not in dispute that in the present case the sanctioned plan

contains upper fourth floor and lower fourth floor. The dispute is

regarding the upper fourth floor. According to the appellant, upper

fourth floor is covered with tin shed roof and there is no RCC roof.

According to respondent, the sanctioned plan only contains RCC

roof and not tin shed coverage. It is also not in dispute that the

upper fourth floor was treated as RCC roof, as per the

reassessment made in the impugned assessment order. There is

no evidence placed before this Court to show that the upper fourth

floor is covered with tin shed roof. On the contrary, the sanctioned

plan shows that the upper fourth floor contains RCC roof. This

aspect requires reconsideration by the respondent. If the

assessment authority i.e., the Commissioner, GHMC, Hyderabad on

re-inspection finds that upper fourth floor is covered with tin shed

roof, even though the sanctioned plan was obtained for RCC roof, it

shall be treated as tin shed, as there is no RCC roof. Therefore,

reassessment in this regard requires to be reconsidered.

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14. In the light of the above observations, this second appeal is

liable to be allowed to this extent alone and other aspects of the

reassessment do not require any interference.

15. In the result, the second appeal is partly allowed as follows:

a. The reassessment order dated 29.03.2014 with reference to

fixing of collection of tax on parking area from 01.10.2005 to

30.09.2007 is set aside.

b. The respondent is directed to inspect and reconsider the

assessment order dealing with upper fourth floor area covering

4,951.88 sft. If on inspection, it is found that the upper fourth

floor is covered with tin shed roof and not RCC roof, then the

respondent shall impose tax with reference to tin shed i.e., with

whatever rate of tax that was prevailing during the relevant period

of assessment. The above said inspection and reconsideration shall

be done by giving prior notice and information to the appellant.

c. The rest of the findings of the impugned reassessment order

are confirmed.

d. There shall be no order as to costs. Miscellaneous petitions,

if any, pending, shall stand closed.

______________ M.LAXMAN, J Date: 02.12.2022 GVR