IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 OP.No. 1384 of 2003(M) -------------------------------- PETITIONERS: ---------------------- 1. K.P.VARGHESE S/O. POULOSE, KOCHUKUNNUMPURATH HOUSE, MANANTHAVADY, WAYANAD DISTRICT 2. CATHREENA VARGHESEM W/O. K.P.VARGHESE, KOCHUKUNNUMPURATH HOUSE, DO.DO. 3. K.V.JOSE, S/O. K.P.VARGHESE, DO.DO. 4. SHALI JOSE W/O. K.V.JOSE, KOCHUKUNUMPURATH HOUSE, DO.DO. 5. K.V.JOY S/O. K.P.VARGHESE, DO.DO. 6. SHEEJA JOY W/O. K.V.JOY, KOCHUKUNNUMPURATH HOUSE, DO.DO. 7. K.V.JOICE VARGHESE, D/O. K.P.VARGHESE, KOCHUKUNNUMPURATH HOUSE, DO.DO. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS: ------------------------ 1. THE TAHSILDAR, TALUK OFFICE, MANANTHAVADY, WAYANAD DISTRICT 2. THE REVENUE DIVISIONAL OFFICER, MANANTHAVADY, WAYANAD DISTRICT 3. THE DISTRICT COLLECTOR, WAYANAD, KALPETTA. GOVERNMENT PLEADER SRI.K.P.PARADEEP FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.1384/2003 ORDER ON CMP. NO.2384/2003 IN OP. NO.1384/2003 DISMISSED 23.07.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE NOTICE OF DEMAND ISSUED BY THE IST RESPONDENT TO THE PETITIONERS VIDE NO.B6-61/BT/95 DT. 7/1995. EXT.P2:- COPY OF THE ORDER OF ASSESSMENT UNDER THE KERALA BUILDING TAX ACT, 1975, ISSUED BY THE IST RESPONDENT TO THE PETITIONERS VIDE NO.D5- 175/BT/97 DT. 15.6.1998. EXT.P3:- COPY OF THE NOTICE OF DEMAND VIDE NO.D5.174/BT/97 DT. 12.2.98 BY THE IST RESPONDENT TO THE PETITIONER. EXT.P4:- COPY OF THE NOTICE NO.D5-9721/99(10 DT. 21.8.99 BY THE IST RESPONDENT TO THE PETITIONER. EXT.P5:- COPY OF THE NOTICE VIDE NO.D5-9721/99 DT. 5.11.99 DO. DO. EXT.P6:- COPY OF THE NOTICE VIDE NO.D5-9721/99 DT. 26.11.99 DO. DO. EXT.P7:- COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT REFERRED TO IN THE ORIGINAL PETITION. EXT.P8:- COPY OF THE SITE PLAN PERTAINS TO PERMIT NO.62/1995-96, REFERRED TO IN THE ORIGINAL PETITION. EXT.P9:- COPY OF THE ORDER OF ASSESSMENT VIDE NO.D5-9721/99 DT. 16.12.99 WITH NOTICE OF DEMAND NO.D5-9721/99 DT. 16.12.99 BY THE IST RESPONDENT TO THE PETITIONER. EXT.P10:- COPY OF THE APPEAL PREFERRED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT ON 15.1.2000. EXT.P11:- COPY OF THE ADDITIONAL LIST OF DOCUMENTS SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT ON 5.7.2000 IN APPEAL NO.172/2000. EXT.P12:- COPY OF THE PROCEEDINGS NO.H.172/2000 DT. 5.10.2000 ISSUED BY THE ASSISTANT COLLECTOR, MANANTHAVADY, TO THE PETITIONERS. EXT.P13:- COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT REFERRED TO IN THE ORIGINAL PETITION. OP. NO. 1384/2003 EXT.P14:- COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT ON 18.11.2000 IN REVISION PETITION. EXT.P15:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT ISSUED TO THE PETITIONERS VIDE NO.B5-33465/2000 DT. 13.11.2002. EXT.P16:- COPY OF THE SHOWING THE TWO BUILDINGS IN QUESTION AND GAP BETWEEN THEM. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.1384 of 2003-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2008. JUDGMENT The petitioners are challenging Exts.P9, P12 and P15 orders issued by the authorities under the Kerala Building Tax Act. The short facts leading to the dispute are the following: 2. Originally, the first petitioner was granted building permit for constructing a non-residential building in the land comprised in Sy. Nos.449/1, 449/2, 450, 512 and 513 of Vemom Village, Mananthavady Taluk. After obtaining the building permit, various portions of the property have been gifted to the other petitioners. Thereafter, they jointly completed the construction of the ground floor and first floor of the building as per the approved plan by sharing the investment. The structure of the second floor was also completed at that time. In the year 1996 the construction of the second floor was also completed. It is pointed out that the building constructed as per the permit No.198/1992-93 is owned and occupied by petitioners 1, 3, 4, 5 and 7 individually and separately as their absolute property. The assessing authority issued Ext.P1 imposing the tax liability which was remitted by the petitioners. This was imposed at the time when OP 1384/2003 -2- the second floor was yet to be completed. After the completion of the second floor of the building, a fresh notice was issued as per Ext.P2 and the balance amount was also paid. 3. The adjacent property in Sy. No.450 was also owned by the first petitioner, for which a separate building permit was obtained for construction of a non-residential building. In fact, he had gifted various portions of the property to the other petitioners by executing separate documents. Ultimately, a building was constructed and Ext.P3 assessment order was issued assessing the parties for payment of building tax to the tune of Rs.79,200/-. An appeal was filed against it and the Appellate Authority has remanded the matter to the first respondent and thereafter revised assessment order was passed. The amount covered under the revised assessment was also paid. The present dispute arose based on the subsequent notices, Exts.P4 and P5 issued by invoking Section 15 of the Kerala Building Tax Act. Ultimately, this resulted in passing of Ext.P9, whereby a further amount of Rs.50,400/- was demanded towards tax. The basis of this assessment is that the two buildings form one unit. This was challenged by Ext.P10 appeal before the Appellate Authority and the Appellate Authority, by Ext.P12, rejected the appeal. The finding rendered therein is that the second building is only a wing of the main building. A OP 1384/2003 -3- further revision was filed as per Ext.P13 before the District Collector, who disposed of the same by Ext.P15 which is under challenge in this writ petition. 4. At the time of admission of this writ petition, this court by order dated 12.1.2007 directed the petitioners to produce photographs of the two buildings in view of the contention raised by the petitioners that the first and second buildings are separately constructed and does not form part of the same building. The petitioners have produced the photographs as Ext.P16 series. 5. One of the main contentions raised by the learned counsel for the petitioners is that the authorities went wrong in passing a fresh order of assessment by invoking Section 15 of the Act. It is pointed out that what is contemplated under Section 15 of the Act is only rectification of mistakes and not passing a revised or reviewed assessment order. Reliance is placed on the decision of this court in Kurian George v. Tahsildar (1995 (2) KLT 457) and later decisions on this point. My attention was invited to para 17 of the above judgment, wherein this court was pleased to lay down parameters to consider whether a mistake which is sought to be rectified is one that is apparent from the record. The said para is extracted below for OP 1384/2003 -4- reference. “17. The following propositions of law emerge out of the above decisions: (1) Subject to the provision of period of limitation prescribed by the relevant statute, a mistake apparent from the record can be rectified by the competent authority named therein; (2) Usually, the following mistakes are considered to be “mistakes are considered to be “mistakes apparent from the record”; (a) Arithmetical error (b) Clerical error © Slip or inadvertent omission i an order or judgment (d) If the later enactment having retrospective operation enables an authority to modify or alter the original assessment order; and (e) Where in the earlier assessment order no valid principle of law was applied. (3) An authority has no jurisdiction to rectify a mistake, if -- (a) the authority has passed orders by taking one of the alternative views, when two views are possible; (b) the authority has adopted one of the alternative methods available for assessment of tax according to law and later finds that more amount of tax could be obtained by adopting the alternative method; © a mistake has to be discovered by a long drawn process of OP 1384/2003 -5- reasoning or examining arguments on points of law and on facts or when further evidence is required to be adduced to rectify the mistake; (4) Re-opening or review of an assessment order is not permissible if the relevant statute does not confer such powers on an authority; (5) Taxing authority is a quasi-judicial authority. Hence no higher administrative authority or even appellate authority without hearing the affected party or in the absence of an appeal can give direction to the assessing authority to pass orders in one way or the other. (6) A writ is maintainable even at the notice stage, where threat of prejudicial action is wholly without jurisdiction. (7) An order or direction under Art.226 of the Constitution of India can be issued by the High Court prohibiting an authority acting without jurisdiction from continuing such action inspite of existence of such alternative remedies as appeals and revisions.” It is submitted that Ext.P9 and subsequent orders reflect a revised assessment which is impermissible. 6. The other point that is strongly canvassed by the learned counsel for the petitioners is as regards the question whether the two buildings are separate or not. This contention is sought to be supported by the building plan produced as Ext.P8 as well as the photographs. In Ext.P15, the only finding as regards this aspect is that the assessment file shows that the OP 1384/2003 -6- second building is a wing of the main building. It is not apparent from the above order that all the aspects have been considered before entering such a finding. At any rate, there is no reference to the plan as also the facts evident from the files submitted by the subordinate officers. Further, the question whether Section 15 can be invoked to justify the fresh order of assessment is also not considered by the revisional authority. 7. In that view of the matter, I quash Ext.P15. The petitioners will be re-heard in the matter by the revisional authority after issuing notices of personal hearing. The petitioners will be given an opportunity to produce all materials including the plan, Ext.P8 and the photographs, Ext.P16 series. They will be allowed to address arguments on the legal issue regarding the applicability of Section 15 of the Act also. Fresh orders shall be passed within a period of five months from the date of receipt of a copy of this judgment. The interim order passed by this court in C.M.P.No.2384/2003 will continue to be in force till the matter is finally decided. The original petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 1384/2003 -7- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.1384 of 2003-M - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 23rd July, 2008.