IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 1384 of 2003(M)
1. K.P.VARGHESE S/O. POULOSE,
... Petitioner
2. CATHREENA VARGHESEM W/O. K.P.VARGHESE,
3. K.V.JOSE, S/O. K.P.VARGHESE, DO.DO.
4. SHALI JOSE W/O. K.V.JOSE,
5. K.V.JOY S/O. K.P.VARGHESE, DO.DO.
6. SHEEJA JOY W/O. K.V.JOY,
7. K.V.JOICE VARGHESE, D/O. K.P.VARGHESE,
Vs
1. THE TAHSILDAR, TALUK OFFICE,
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. THE DISTRICT COLLECTOR, WAYANAD,
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :23/07/2008
O R D E R
T.R. Ramachandran Nair, J.
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O.P.NO.1384 of 2003-M
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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
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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
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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
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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
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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
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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/
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T.R. Ramachandran Nair, J.
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O.P. No.1384 of 2003-M
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JUDGMENT
23rd July, 2008.