IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 17080 of 2007(G) ---------------------------------------- PETITIONER(S): ------------------------ 1. P. APPUKUTTAN, PONKUDY HOUSE, KIZHAKKUMBHAGAM KARA, VELLARAPPILLY, ALUVA. 2. C. PADMINI, W/O. P.APPUKUTTAN, PONKUDY HOUSE, KIZHAKKUMBHAGAM KARA, VELLARAPPILLY, ALUVA. 3. P.E. BALAKRISHNA MENON, PARAYATH HOUSE, BANK ROAD, ALUVA. 4. V. VIJAYALAKSHMI, W/O. P.E.BALAKRISHNA MENON, PARAYATH HOUSE, BANK ROAD, ALUVA. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.B.R.MURALEEDHARAN RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE TAHSILDAR, ALUVA. 3. THE VILLAGE OFFICER, ALUVA WEST VILLAGE, ALUVA. R1 TO R3 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.17080/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 28/5/98 OF THE 2ND RESPONDENT P2 COPY OF THE ORDER DATED 28/5/98 OF THE 2ND RESPONDENT P3 COPY OF THE ORDER DATED 3/12/98 OF THE 1ST RESPONDENT P4 COPY OF THE JUDGMENT DATED 13/12/2005 IN OP NO.26040/98 OF THIS HON'BLE COURT. P5 COPY OF THE ORDER DATED 25/9/06 OF THE 1ST RESPONDENT. P6 COPY OF THE ORDER DATED 23/4/07 AND THE DEMAND NOTICES ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17080 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th day of September, 2011. J U D G M E N T Petitioners 1 and 2 are man and wife and petitioners 3 and 4 are also man and wife. All four of them together decided to construct a multi-storeyed commercial building in a property jointly owned by all the petitioners. Pursuant thereto, an agreement was executed among them, wherein, specific portions of the building were to be constructed by each from their own sources of funds. After construction, the petitioners claimed assessment of portions owned by each of them as separate units for the purpose of the Kerala Building-tax Act. Pursuant thereto, the assessing authority assessed tax separately for the portions of the building owned by each of them and the petitioners paid the same. Later on, on account of certain audit objections, the assessing authority decided to re-open the assessment under Section 15 and passed Exts. P1 and P2 orders assessing the areas owned by petitioners 1 and 2 as one unit and the areas owned by petitioners 3 and 4 as another unit. The petitioners challenged the same before the District Collector, which was dismissed by Ext.P3 order. The petitioners challenged Ext.P3 order in O.P.No. 26040/1998 and by Ext.P4 judgment, this Court directed the 1st respondent-District Collector to consider the matter afresh in the light of the decisions of this Court in Kurian George v. Tahsildar, 1995 (2) KLT 457 and Lissy v. Tahsildar, 2000 (3) KLT 497, after quashing the impugned orders. Pursuant thereto, the District W.P(C) No. 17080 of 2007 -: 2 :- Collector passed Ext.P5 order remanding the matter to the assessing authority for fresh assessment on the ground that the matter has to be considered in the light of the decisions of this Court mentioned in Ext.P4 judgment. Accordingly, the 2nd respondent-assessing authority reconsidered the matter and passed Ext.P6 order assessing the building as two separate units as done in Exts. P1 and P2. Exts. P5 and P6 are under challenge in this writ petition. 2. According to the petitioners, the petitioners had produced sufficient materials to show that each of the four petitioners had constructed their respective portions of the building using their own funds as per a joint agreement executed for that purpose in a land jointly owned by all the four. Therefore, there was no reason to assess the building as two separate units owned by each of the couple, is the contention of the petitioners. 3. A counter affidavit has been filed by the respondents taking the stand that going by the documents themselves, each of the couple jointly owned the respective portions owned by them and therefore there is nothing wrong in assessing the building as two separate units owned by each of the couple. 4. I have considered the rival contentions in detail. 5. In Ext.P6, the 2nd respondent-assessing authority himself has held thus: “I prove the claim for meeting the cost of construction jointly, the assessees have produced a W.P(C) No. 17080 of 2007 -: 3 :- statement showing the source of income before the assessing authority along with copy of statement submitted before the Income-tax Authorities. A certificate showing the receipt of Rs. 90,000/- from M/s. Chittie and Kuries, Aluva being the chitty bid amount, has also been produced. I do not discard the sound financial position of the assessees to raise fund for the construction of the building. But it has to be taken into account that the four assesses are two couples and the apportionment of the source of income between the husband and wife to claim separate assessment and the claim of utilization of separate funds for the construction of the building between husband and wife are not warranted in assessment of building tax as far as Building Tax Act is concerned.” As such, it is abundantly clear that the assessing authority was satisfied that each of the petitioners had their own sources of income to construct their portions of the building. Admittedly, an agreement among the 4 had been produced for constructing separate portions of the building using the funds of each of the petitioners. As such, the petitioners had sufficiently proved that each of them separately constructed their portion of the building using his/her own funds. In such cases, the decisions of this Court in Kurian George v. Tahsildar, 1995 (2) KLT 457 and Lissy v. Tahsildar clearly apply. As such, there was no reason for the respondents to hold that each couple together owned the building as two separate units. Therefore, the assessing authority ought to have confirmed the original assessment instead of re-opening the assessment under Section 15 of the Kerala Building-tax Act, 1975. 6. I also find that in such circumstances, the re- W.P(C) No. 17080 of 2007 -: 4 :- opening of the assessment itself is bad insofar as Section 15 allows only rectification of any mistake apparent from the records of the case. Here, there is no mistake apparent from the records of the case. But Section 15 has been resorted to on the basis of an audit objection, which can only be another opinion regarding the same subject matter and will not show that there was any mistake apparent on the face of the records. In fact, in Laxmanan v. Tahsildar, 2002 (2) KLT S.N. 21 (Case No. 22), a learned Judge of this Court has held that an opinion of audit officer is not a ground contemplated under Section 15. As such, I am of opinion that on the basis of the opinion of the audit party, Section 15 could have been invoked in the case of the petitioners. For all the above reasons, Ext.P6 order is quashed holding that the assessments of the petitioners are not liable to be re-opened. Sd/- S. Siri Jagan, Judge. Tds/