IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 OP.No. 2653 of 2001(N) ------------------------------- PETITIONER: ------------------ M.O.DEVASSY ALIAS PAPPU, S/O. OUSEPH, MENACHERRY HOUSE, P.O., NAYATHODE, ANGAMALY. BY ADV. SRI.BABU KARUKAPADATH SRI.M.A.ABDUL HAKHIM RESPONDENTS: ----------------------- 1. TAHASILDAR AND ASSESSING AUTHORITY, ALUVA TALUK, ALUVA. 2. REVENUE DIVISIONAL OFFICER, FORT COCHIN. 3. DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD, COCHIN - 30. BY GOVERNMENT PLEADER SRI.V.TEK CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.2653/2001 ORDER ON CMP. NO.4453/2001 IN OP. NO.2653/2001 DISMISSED 06.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE AGREEMENT DT. 1.7.86 EXECUTED BETWEEN THE PETITIONER, HIS WIFE, AND HIS 3 SONS FOR JOINT CONSTRUCTION OF BUILDING. EXT.P2:- COPY OF THE AGREEMENT DT. 23.11.88 EXECUTED BETWEEN THE PETITIONER, HIS WIFE, & 3 SONS. EXT.P3:- COPY OF THE NOTICE OF DEMAND IN FORM NO.IV DT. 22.895 ISSUED BY THE SIT RESPONDENT. EXT.P4:- COPY OF THE NOTICE OF DEMAND DT. 22.8.95 ISSUED TO THE PETITIONERS WIFE SMT.ELIAKUTTY PAPPU ISSUED BY THE IST RESPONDENT. EXT.P5:- COPY OF THE NOTICE OF DEMAND DT. 22.8.95 ISSUED TO THE PETITIONER'S SON M.D. JOSE BY THE IST RESPONDENT. EZXT.P6:- COPY OF THE NOTICE ISSUED IN FORM V TO THE PETITIONER'S SON M.D.BIJOY BY THE IST RESPONDENT DT. 22.8.95. EXT.P7:- COPY OF THE ORDER DT. 29.4.98 ISSUED BY THE IST RESPONDENT TO THE PETITIONER PETITIONER'S WIFE AND 3 CHILDREN. EXT.P8:- COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, FORT COCHI DT. 24.8.98. EXT.P9:- COPY OF THE APPELLATE ORDER DT. 12.2.99 ISSUED BY THE REVENUE DIVISIONAL OFFICER , FORT COCHIN EXT.P10:- COPY OF THE REVISION PETITION FILED BEFORE THE HONOURABLE DISTRICT COLLECTOR, ERNAKULAM BY THE PETITIONER DT. 19.3.99. EXT.P11:- COPY OF THE ORDER DT. 11.8.00 ISSUED BY the 3RD RESPONDENT AGAINST THE REVISION PETITION OF THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J. ========================= O.P.No.2653 of 2001-N. ========================= Dated this the 6th day of March, 2008. J U D G M E N T Aggrieved by Ext.P7 which stands confirmed in Ext.P9 appellate order and Ext.P11 revisional order, the petitioner has filed this original petition. The challenge is on the ground that as the orders of assessment Exts.P3 to P6 have become final, the assessing officer cannot, under the guise of exercise of powers under Sec.15(1) of the Act, pass a revised order of assessment by changing the mode of assessment. 2. The short facts are the following: The petitioner, his wife, and his three sons entered into Ext.P1 agreement dated 1.7.1986 for the construction of a building jointly in 30.5 cents of land in Survey No.297/4, 5 of Aluva village. It is stated that they had jointly submitted application to the Aluva OP.No.2653/2001-N. -: 2 :- Municipality for the approval of the plan for the said construction and accordingly approval was granted by the Municipality and thereafter the building was constructed. It is also stated that after completing the construction of the building the parties measured, demarcated and identified the portions of the building constructed by each with their own contribution towards the cost of construction of the building. The details have been stated in the original petition. Ultimately by Ext.P2 the parties identified separate portions of the building constructed by them. 3. Exts.P3 to P6 are the notices of demand showing the assessment of building tax to the said building individually in favour of the petitioner, his wife and three sons. They are dated 22.8.1995 and it is stated that based on the said notices the respective parties have paid the building tax assessed also. 4. On 18.9.1997 again fresh notices were issued on the ground that the assessment of the building has to be revised under Section 15 of the Act due to some error. In Ext.P7 as a justification for the fresh assessment, the assessing authority found that from OP.No.2653/2001-N. -: 3 :- the documents produced along with the return at the time of assessment, it is clear that Sri.M.O.Devassy alone has absolute title on the land in which the building was constructed. Accordingly, the total amount of tax was assessed to Rs.1,52,400/- making the petitioner liable for the entire amount. In Ext.P8 the petitioner challenged it on various grounds. In Ext.P9 order passed in appeal actually the contentions have not been dealt with properly. The only finding in Ext.P9 is that the Tahsildar had reported that there are certain errors in the earlier assessment and the said errors have been rectified by revising the assessment order invoking Sec.15 of the Act. In Ext.P10 revision petition also detailed grounds have been taken including the contention that there was no error apparent on the face of the records warranting action under Sec.15 and that a revised order of assessment cannot be passed. But the revisional authority in Ext.P11 dismissed the revision holding that, ‘it is seen from the records available that the land is absolutely owned by Sri.M.O.Devassy and they could not prove that the building under assessment is constructed with their each funds as OP.No.2653/2001-N. -: 4 :- provided under law.’ 5. The respondents have filed a counter affidavit justifying the action. 6. Heard the learned counsel for the petitioner and the learned Government Pleader. 7. It is pointed out by the learned counsel for the petitioner that what is attempted is an exercise by which the authorities have reopened the assessment and has passed a revised assessment order which cannot be done by invoking the power under Sec.15 of the Act. He invited my attention to the decisions of this Court namely, Yousef v. State of Kerala (1993(2) KLT 59), Gopalakrishnan v. Tahsildar (1995(2) KLT 37), Kurian George v. Tahsildar (1995(2) KLT 457) and Karunakaran Nair v. Tahsildar, Changanacherry (2000(2) KLT 705). 8. The learned Government Pleader submitted that the authorities have only rectified an error which was apparent on the face of the records. It is argued that on the earlier occasion the OP.No.2653/2001-N. -: 5 :- authorities have merely proceeded on the basis of that the land and the buildings are separately owned and constructed by the respective owners which was found to be erroneous. It is pointed out that the error is clear from the face of the records in the sense that one of the sons being a minor there cannot have been any assessment on that basis. 9. In the decision of this Court in Yousef’s case (1993(2) KLT 59) it was held that there is a distinct difference between the reopening of an assessment and rectification of any mistake in it apparent from the record. It was held therein as follows: “The Act nowhere provides for the reopening of an order, and to substitute it with a fresh order on a different basis. There is no provision in the Act akin to S.147 of the Income Tax Act, 1961 or S.19 of the Kerala General Sales Tax Act, 1963. Such a provision is significant by its absence in the Act. Sec.15 which is invoked in this case is analogous to S.154 of the Income Tax Act, 1961 and S.43 of the Kerala General Sales Tax Act, 1963. There is a distinct difference between the re- opening of an assessment and the rectification of any mistake in it, apparent from the record. The consequence of re-opening an assessment is to set aside the original order of assessment, and to substitute it with another order of assessment, in accordance with law. In the case of rectification of a mistake, the order OP.No.2653/2001-N. -: 6 :- which is vitiated by the mistake continues to subsist, and operate, but with the mistake in it rectified. A provision for re-opening an assessment has to be specifically conferred as the finality which, otherwise attaches to it stands affected by the reopening. Ordinarily, the authority passing the order becomes functus officio once the assessment is completed, unless the statute in question vests him with further power either to reopen it, or to rectify any mistake in it. Either way, he has to function strictly within the parameters of that power. Therefore, and in the absence of any provision in the Act to reopen an assessment, the power which could be exercised by the statutory authorities is only to rectify any mistake apparent from the record and not to reopen an assessment changing the basis of it, or to substitute another assessment in its place. A mistake to be so rectified must be apparent from the records, and not with reference to extraneous materials, and this is crucial in the exercise of the jurisdiction under S.15.” Herein by Ext.P7 the earlier orders have been substituted after reopening the assessment. 10. The question was elaborately considered by a Division Bench in Kurian George v. Tahsildar (1995(2) KLT 457). Their Lordships identified various aspects which can be characterised as mistakes apparent on the face of the records. Considering a similar question, in para.17 the following tests have been laid down OP.No.2653/2001-N. -: 7 :- to consider whether the authority in a like situation is exercising the power under Sec.15 or is ordering a revised assessment in the exercise of the power under Sec.15. “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 apparent from the record”: (a) Arithmetical error (b) Clerical error (c) Slip or inadvertent omission in 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; OP.No.2653/2001-N. -: 8 :- (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; (c) a mistake has to be discovered by a long drawn process of 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 given 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 Indian 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.” In the subsequent decision in Karunakaran Nair’s case (2000(2) KLT 705), following the Division Bench it was held in para.4 that, OP.No.2653/2001-N. -: 9 :- by using the power of rectification one cannot make a reassessment. It was held that, ‘by using the power of rectification one cannot make a reassessment. The power of an authority under Sec.15 is to rectify apparent error committed by them. The power of rectification is not a review or appeal or revision. Only an error apparent on the face of the records can be rectified under Sec.15.’ 10. All the above decisions have been considered in the later decision reported in Hajara v. State of Kerala (2005(2) KLT 206). Turning to the facts of the case therein it is seen that after fixing the total capital value of the building, the petitioners therein were served with a demand notice and they paid the amount. Later, they were served with another notice alleging that the earlier order of assessment is irregular. After considering the various decisions it was held in para.6 as follows: “6. It was also held that an authority has no jurisdiction to rectify a mistake, when the authority has passed orders by taking one of the alternative views, when two views are possible and that the mistake has to be discovered and if the mistake is discovered by a long drawn process of reasoning or examining arguments on points where there may conceivably be two opinions OP.No.2653/2001-N. -: 10 :- cannot be said to be a mistake or error which is apparent on the face of record. Reopening or review of an assessment order is not permissible if the relevant statute does not confer such powers on an authority.” 11. The attempt made herein appears to be to make a reassessment based on a different view taken by the assessing officer. The question is whether the same can be justified by invoking Sec.15. The scope of Sec.15 as noticed by the above binding decisions is that only an apparent error alone can be rectified. It shall not result in reopening of assessment and passing a revised order of assessment by substituting the earlier oder. In this case the assessing officer has invoked the power to change the basis on the assessment after taking a different view altogether. In the absence of an appeal even the appellate authority can direct the assessing authority to pass a fresh order, as held in Kurian George's case (1995(2) KLT 457). A fresh attempt on the part of the assessing authority, by way of reopening the assessment and the passing of a revised order of assessment cannot be justified. The learned Government Pleader vehemently contended that there OP.No.2653/2001-N. -: 11 :- is sufficient power for the assessing authority to pass such orders on finding that the earlier orders were not correctly passed. That will amount to a reassessment of facts and evidence by the assessing officer by taking a fresh view of the entire matter and going by the tests laid down by the Division Bench in Kurian George v. Tahsildar (1995(2) KLT 457, I hold that the exercise is without jurisdiction. 12. The appellate authority and the revisional authority have not bestowed their attention to the above aspects. In fact, even in the revised assessment order the ground for passing Ext.P7 is that the petitioner alone has absolute title on the lands on which the building was constructed. That will indicate that the assessing authority has changed its view about the basis of the assessment, which cannot be done by invoking the power under Sec.15. In Exts.P9 and P11 the appellate and the revisional authorities have repeated the very same reasoning. Further the question is whether the building is separately owned or constructed by the funds contributed by the parties. Going by para.5 of the counter OP.No.2653/2001-N. -: 12 :- affidavit, a new approach has been made on that aspect and a different view has been taken, changing the basis of the assessment itself. Therefore, I am of the view that the officer has clearly reopened the entire matter and has passed a fresh order of assessment, which is without jurisdiction. Hence I quash Exts.P7, P9 and P11. The Original Petition is allowed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-