IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WP(C).No. 28459 of 2011(F) ---------------------------------------- PETITIONER(S): ------------------------ 1. C.P. ABDUL LATHEEF, EXECUTIVE PARTNER, MOTOWINGS, PUZHAKKAL, THRISSUR - 680 002. 2. M.C. MOHAMMEDKUTTY, EXECUTIVE PARTNER, MOTOWINGS, PUZHAKKAL, THRISSUR - 680 002. BY ADVS. SRI.K.ANAND, SMT.LATHA KRISHNAN. RESPONDENT(S): --------------------------- 1. THAHSILDAR, THRISSUR - 680 020. 2. THE DISTRICT COLLECTOR, THRISSUR, PIN - 680 003. 3. THE COMMISSI0NER, LAND REVENUE, PUBLIC OFFICE BUILDING, MUSUEM JUNCTION, THIRUVANANTHAPURAM- 695 033. 4. THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 TO R4 BY GOVERNMENT PLEADER SRI. S. JAMAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28459/2011 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF BUILDING PERMIT DTD. 12/04/2002 FROM THRISSUR CORPORATION. P2: COPY OF REGISTRATION NO.TCR/12/519/03 AND PERMIT NO.7/2003 DTD. 5/12/2003 FROM DEPARTMENT OF FACTORIES AND BOILERS. P3: COPY OF NOTICE ISSUED BY THE RESPONDENTS U/S 9 (2)/9(4) IN FORM IV DTD. 05/03/2005. P4: COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT IN FORM V. P5: COPY OF BUILDING TAX RECEIPT DTD. 28/03/2005. P6: COPY OF BUILDING TAX RECEIPT DTD. 29/06/2005. P7:` COPY OF BUILDING TAX RECEIPT DTD. 13/10/2005. P8: COPY OF BUILDING TAX RECEIPT DTD. 31/12/2005. P9: COPY OF THE NOTICE DTD. 2/07/2008 ISSUED BY THE 1ST RESPONDENT. P10: COPY OF THE ASSESSMENT ORDER DTD. 13/10/2008 ISSUED BY THE ASSESSING AUTHORITY. P11: COPY OF THE RECEIPT DTD. 10/11/2008 REMITTED BY THE PETITIONER. P12; COPY OF THE RECEIPT DTD. 10/02/2009 REMITTED BY THE PETITIOINER. P13: COPY OF THE RECEIPT DTD. 25/03/2009 REMITTED BY THE PETITIONER. P14: COPY OF THE RECEIPT DTD. 13/08/2009 REMITTED BY THE PETITIONER. P15: COPY OF THE PETITION DTD. 30/12/2010 FILEDBY THE PETITIONER BEFORE THE 2ND RESPONDENT. P16: COPY OF THE REGISTERED A/D LETTER DTD. 05/09/2011 SENT BY THE PETITIONERS TO THE 1ST RESPONDENT. P17: COPY OF THE APPLICATION DTD. 05/09/2011 FOR REFUND OF BUILDING TAX U/S 20 OPF THE ACT SENT TOTHE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.28459 of 2011 ---------------------------------------------- Dated this the 8th day of November, 2011 JUDGMENT By Ext.P4 order dated 11.3.2005, the 1st respondent completed assessment of the petitioners' building under the Kerala Building Tax Act demanding an amount of Rs.4,11,750/- as building tax due on the building. The petitioners paid that amount. Subsequently by Ext.P10 order dated 13.10.2008 the assessment was revised and the petitioners were directed to pay a total amount of Rs.6,66,000/- as building tax. The petitioners did not challenge the orders by filing an appeal. The petitioners filed Ext.P15 application dated 13.12.2010 for refund of tax paid on the ground that there is a mistake apparent on the face of the record, which has to be rectified under Section 15 of the Act, insofar as a major part of the building is used as a workshop, which part is eligible for exemption from payment of building tax under Section 3(1) of the Kerala Building Tax Act. However, that application was not considered. It is under the above circumstances, the petitioners have filed this writ petition seeking W.P.(C)No.28459/11 2 the following reliefs: “a) Call for the records leading to Ext.P4 and Ext.P10 and issue order quashing the same and to declare that the petitioners are entitled to get exemption from payment of building tax; b) Issue direction to the 1st respondent to consider and pass orders as expeditiously as possible on Ext.P16 & P17 and refund the amount to the petitioners. c) Issue direction to the 2nd, 3rd and 4th respondents to give necessary orders regarding exemption of building tax in the case immediately”. 2. I have heard the learned Government pleader also. 3. I am of opinion that the petitioners are bound to fail in this writ petition for more than one reason. First is that Section 15 can be invoked only for rectification of a mistake apparent on the face of the record. As it stands now, there is no mistake apparent on the face of the record. If any part of the building was eligible for exemption under Section 3(1), it was for the petitioners to raise that claim before the assessing authority. The petitioners did not raise such a claim either at the time of original assessment or at the time of re- assessment. The petitioners paid the tax in full. It is settled law that an assessee cannot raise the claim for exemption under Section 3(1), after completion of the assessment. In the decision of Mother Superior, Congregation of Sisters of Charity v. Tahsildar, Mananthawady [1987(1) KLT 841], this W.P.(C)No.28459/11 3 Court held as follows: “xxx xxx xxx xxx xxx xxx xxx xxx 5. When an assessment is completed by the assessing authority, the assessee has got two options, either to file an appeal under S. 11 after paying the building tax; or to move the District Collector in revision under S. 13 to call for and examine the record of the order of assessment and pass such order in reference thereto as he thinks fit. The decision in the appeal under S. 11 is subject to reference to the District Collector in revision under S. 13 against the order of the appellate authority. The District Collector is also vested with the power to suo motu call for and examine the record of any order passed by the appellate authority or the assessing authority and pass suitable orders. Government is vested with the power to call for and examine the record of any order passed by the District Collector suo motu under S. 13. 6. So far as assessing authority is concerned, the only further powers vested in him after he makes the order of assessment are those under Ss.15 and 16. He can under S. 15, rectify any mistake apparent from the record. S.16 confers on him the power to revise the order of assessment in cases where the annual value of the building fixed by the local authority is enhanced or reduced under the law governing that local authority, on the ground that the annual value originally fixed was excessive or low. Barring these limited powers conferred by Ss.15 and 16, the assessing authority becomes functus officio as soon as the order of assessment is passed under S. 9 of the Act, and the consequent notice of demand served.” The said decision is squarely applicable to the petitioners' case. The claim for exemption has to be raised before the assessment is complete. Non-consideration of a claim for exemption which was not raised before the assessment cannot W.P.(C)No.28459/11 4 be a mistake apparent on the face of the record. Therefore no application for rectification under Section 16 would be in respect thereof. Even apart from that, at the time when Ext.P4 assessment was passed on 11.3.2005 itself the petitioners must have been aware of the fact that they had not raised the claim for exemption. By Ext.P10 order dated 13.10.2008, only the assessment was revised. I am of opinion that in view of the decision in Aradhana Lodge v. Tahsildar [1990(1) KLT 33], for the purpose of calculating limitation under Section 15, the relevant date to be taken in this case is the date of Ext.P4. Therefore the petitioner's application for rectification of mistake, even if there is one, is hopelessly barred by limitation. For the above reasons, I do not find any merit in this writ petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.28459/11 5 W.P.(C)No.28459/11 6