{"id":174872,"date":"2010-03-30T00:00:00","date_gmt":"2010-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jose-vs-village-officer-on-30-march-2010"},"modified":"2016-07-09T16:36:19","modified_gmt":"2016-07-09T11:06:19","slug":"jose-vs-village-officer-on-30-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jose-vs-village-officer-on-30-march-2010","title":{"rendered":"Jose vs Village Officer on 30 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Jose vs Village Officer on 30 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 26613 of 2007(R)\n\n\n1. JOSE, AGED 61 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. VILLAGE OFFICER,\n                       ...       Respondent\n\n2. TAHSILDAR,CHAVAKKAD TALUK.\n\n                For Petitioner  :SRI.P.SANTHOSH  (PODUVAL)\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice C.K.ABDUL REHIM\n\n Dated :30\/03\/2010\n\n O R D E R\n                   C.K.ABDUL REHIM, J.\n\n                  ------------------------------\n                W.P.(C).No.26613 OF 2007\n                  ------------------------------\n\n         Dated this the 25th day of March, 2010\n\n\n                      J U D G M E N T\n<\/pre>\n
                      ———————-\n<\/p>\n
      1.     Challenge in this writ petition is against Ext.P7<\/p>\n
proceedings issued by the 2nd respondent, purportedly under<\/p>\n
Section 15 of the Kerala Building Tax Act, 1975. Ext.P8 is<\/p>\n
the consequential demand issued claiming payment of the<\/p>\n
balance amount of tax. The building in question is a non-<\/p>\n
residential building situated in Guruvayoor village.      The<\/p>\n
permit for construction of the building was obtained in the<\/p>\n
name of the petitioner. The petitioner had executed Ext.P2<\/p>\n
Sale Deed and Ext.P3 agreement with his wife Smt.Elamma,<\/p>\n
transferring undivided share in the property and permitting<\/p>\n
her to construct first floor of the building. According to the<\/p>\n
petitioner the Ground Floor of the building was constructed<\/p>\n
by him and the First Floor was constructed by his wife.<\/p>\n
Ext.P3 and P4 are copies of rental agreements with respect<\/p>\n
to portions let out in the first floor of the building by the<\/p>\n
petitioner’s wife.\n<\/p>\n
      2.   Assessments under the Kerala Building Tax Act<\/p>\n
W.P.(C).26613\/07                 -2-\n<\/p>\n
\nwas completed by the 2nd respondent on 9.2.2005, separately<\/p>\n
in the name of the petitioner and wife with respect to the<\/p>\n
different floor owned by each of them. Both of them had<\/p>\n
remitted the entire amount of tax assessed. Subsequently, in<\/p>\n
the year 2007 Ext.P5 notice was issued by the 2nd respondent<\/p>\n
intimating that pursuant to audit conducted from the office of<\/p>\n
the Land Revenue Commissioner, it is pointed out that<\/p>\n
separate assessments allowed in the name of the petitioner<\/p>\n
and his wife was not proper and there is no proper documents<\/p>\n
available for treating the building as separate. Therefore the<\/p>\n
petitioner was requested to produce documents to prove that<\/p>\n
the building in question is liable to be assessed separately.<\/p>\n
      3.    The petitioner filed Ext.P6 reply stating that the<\/p>\n
first floor of the building is constructed by his wife after<\/p>\n
assignment of share in the property and after execution of<\/p>\n
Ext.P2 agreement.       Therefore it is contended that the<\/p>\n
buildings are liable to be assessed separately.       It is also<\/p>\n
contended that a major portion of the first floor is occupied by<\/p>\n
the petitioner’s wife herself and the area is liable to be<\/p>\n
exempted from assessment.\n<\/p>\n
      4.    In Ext.P7 proceedings the 2nd respondent found<\/p>\n
that the petitioner had failed to establish through any<\/p>\n
W.P.(C).26613\/07                 -3-\n<\/p>\n
\nconvincing document that the building in question are owned<\/p>\n
separately by the petitioner and his wife. It is found that, on<\/p>\n
the basis of assessment made by the Muncipality for levying<\/p>\n
property tax and on the basis of report submitted by the<\/p>\n
Village Officer, the building in question belongs to the<\/p>\n
petitioner. Hence it is found that the building in question is<\/p>\n
liable to be assessed as a single unit and therefore the amount<\/p>\n
of tax already paid is insufficient. Accordingly the petitioner<\/p>\n
was requested to remit the differential amount of tax, to the<\/p>\n
tune of Rs.27,000\/-.      The order Ext.P7 as well as the<\/p>\n
consequential demand is challenged as legally unsustainable.<\/p>\n
      5.    Heard, Sri.Santhosh P. Poduval, learned counsel<\/p>\n
for petitioner and Sri.K.P. Pradeep, learned Government<\/p>\n
Pleader appearing on behalf of the respondents.          In the<\/p>\n
counter affidavit filed by the respondents it is contended that<\/p>\n
Ext.P7 is issued invoking Section 15 of the Act, on the ground<\/p>\n
that there occurred an error apparent on the face of record<\/p>\n
while completing the earlier assessment. Learned counsel for<\/p>\n
the petitioner argued that apart from the question as to<\/p>\n
whether the building is liable to be assessed as a single unit<\/p>\n
or not, the question to be considered is as to whether there<\/p>\n
was any valid ground existed for invoking Section 15 of the<\/p>\n
W.P.(C).26613\/07                 -4-\n<\/p>\n
\nAct. The reason stated in Ext.P7 for invoking Section 15 is<\/p>\n
that the petitioner had failed to produce convincing evidence<\/p>\n
to prove separate ownership of distinct floors. According to<\/p>\n
the petitioner, the separate assessment was finalised by the<\/p>\n
2nd respondent after being convinced with such documents of<\/p>\n
ownership. It is argued that no error apparent on the face of<\/p>\n
the record occurred while completing such assessment.<\/p>\n
Therefore no legal ground warranting rectification of mistake<\/p>\n
exists in the case at hand, is the argument.<\/p>\n
      6.    The   assessment     pertains  to   a    two-storied<\/p>\n
commercial building.       Going by definition of “building”<\/p>\n
contained in Section 2(e) of the Act, it could not be disputed<\/p>\n
that the building is liable to be assessed as a single unit. But<\/p>\n
Explanation 2 to Section (2)(e) of the Act provides that, where<\/p>\n
a building consists of different apartments or flats owned by<\/p>\n
different persons and the cost of such construction was met<\/p>\n
by all such persons jointly, each such apartment or flat shall<\/p>\n
be deemed to be a separate building. It is held by this court<\/p>\n
in Lissy Vs. Tahsildar (2000 (3) KLT 497) that the<\/p>\n
exemption available under Explanation 2 will equally apply to<\/p>\n
commercial buildings also.         In the case at hand the<\/p>\n
assessment was initially completed treating the building as<\/p>\n
W.P.(C).26613\/07                     -5-\n<\/p>\n
\nseparate units. Therefore the question to be considered is as<\/p>\n
to whether the reason mentioned in Ext.P7 to the effect that<\/p>\n
there was no convincing proof available with respect to<\/p>\n
separate ownership is an error which is apparent on the face<\/p>\n
of the record which can be rectified invoking Section 15 of the<\/p>\n
Act. In a landmark decision of this court in Kurian George<\/p>\n
Vs. Tahsildar (1995 (2) KLT 457) a Division Bench of this<\/p>\n
court had enumerated illustrations as to what can be<\/p>\n
considered as a mistake apparent from the record and what<\/p>\n
should not be considered as a mistake as contemplated in<\/p>\n
Section 15.      The extract of such illustrations contained in<\/p>\n
paragraph 17 of the said decision is quoted below:-<\/p>\n
          (2) Usually, the following mistakes are considered to be<\/p>\n
             “mistakes apparent from the record”.\n<\/p><\/blockquote>\n
          (a) Arithmetical error<\/p>\n<\/blockquote>\n
          (b) Clerical error<\/p>\n<\/blockquote>\n
          (c) Slip or inadvertent omission in an order or judgment<\/p>\n<\/blockquote>\n
          (d)   If the later enactment having retrospective operation<\/p>\n
              enables an authority to modify or alter the original<\/p>\n
              assessment order; and<\/p>\n<\/blockquote>\n
          (e) Where in the earlier assessment order no valid principle<\/p>\n
              of law was applied.\n<\/p><\/blockquote>\n
          (3) An authority has no jurisdiction to rectify a mistake, if<\/p>\n<\/blockquote>\n
             (a) the authority has passed orders by taking one of the<\/p>\n
               alternative views, when two views are possible;<\/p><\/blockquote>\n
             (b) the authority has adopted one of the alternative methods<\/p>\n
               available for assessment of tax according to law and later<\/p>\n
W.P.(C).26613\/07                       -6-\n<\/p>\n<\/p>\n
               finds that more amount of tax could be obtained by<\/p>\n
               adopting the alternative method;\n<\/p><\/blockquote>\n
             (c) a mistake has to be discovered by a long drawn process<\/p>\n
               of reasoning or examining arguments on points of law<\/p>\n
               and on facts or when further evidence is required to be<\/p>\n
               adduced to rectify the mistake;\n<\/p><\/blockquote>\n
          (4) Re-opening or view of an assessment order is not<\/p>\n
             permissible if the relevant statute does not confer such<\/p>\n
             powers on an authority;\n<\/p><\/blockquote>\n
          (5) Taxing authority is a quasi-judicial authority. Hence no<\/p>\n
             higher administrative authority or even appellate authority<\/p>\n
             without hearing the affected party or in the absence of an<\/p>\n
             appeal can give direction to the assessing authority to pass<\/p>\n
             orders in one way or the other.\n<\/p><\/blockquote>\n
          (6) A writ is maintainable even at the notice stage, where<\/p>\n
             threat of prejudicial action is wholly without jurisdiction.<\/p>\n
          (7) An order or direction under Article 226 of the Constitution<\/p>\n
             of India can be issued by the High Court prohibiting an<\/p>\n
             authority acting without jurisdiction from continuing such<\/p>\n
             action of existence of such alternative remedies as appeals<\/p>\n
             and revisions.<\/p><\/blockquote>\n
      7.    It is to be noticed that Section 15 insists that,<\/p>\n
before issuing any order rectifying the mistake the assessee<\/p>\n
should be given a reasonable opportunity of hearing in the<\/p>\n
matter. Going by Ext.P5 notice and Ext.P7 proceedings, it<\/p>\n
does not mention anything about rectification of any mistake.<\/p>\n
On the other hand what is stated in Ext.P7 is that there is a<\/p>\n
short levy of tax amount and hence the petitioner is liable for<\/p>\n
payment of the balance. It is also pertinent to note that the<\/p>\n
W.P.(C).26613\/07                    -7-\n<\/p>\n
\nreason for making such a demand mentioned in the<\/p>\n
proceedings is that, objection was raised by the audit team of<\/p>\n
the Land Revenue Commissioner. It is mentioned that the<\/p>\n
proceedings was initiated on the basis of the audit report. In<\/p>\n
Moopan Motors Pvt. Ltd. Vs. Tahsildar (2009 (1) KLT<\/p>\n
989) it is held that a notice under Section 15(3), without<\/p>\n
disclosing the reason for rectification by which an assessee is<\/p>\n
burdened is denial of an effective opportunity and it cannot<\/p>\n
be treated as a valid notice. It is further held that if the<\/p>\n
assessment is rectified on the basis of ‘Audit Note’, it cannot<\/p>\n
be stated that there is an error apparent on the face of the<\/p>\n
record, and it cannot be rectified by using powers under<\/p>\n
Section 15. Therefore I am of the considered opinion that<\/p>\n
neither Ext.P5 notice nor Ext.P7 proceedings can be treated<\/p>\n
as an order issued invoking Section 15 for valid reasons<\/p>\n
sustainable under law.\n<\/p>\n
      8.    A learned Judge of this court has occasion to<\/p>\n
consider an identical issue in the decision reported in Lisha<\/p>\n
Babu Vs. District Collector (2007 (4) KLT 648). In the<\/p>\n
said decision it is held that,<\/p>\n
          “the assessing authority has no case that the structure<\/p>\n
          put up after Ext.X1 document had only plinth area in<\/p>\n
W.P.(C).26613\/07                      -8-\n<\/p>\n<\/p>\n
          excess of 446.77 M.Sq. The identity of the building,<\/p>\n
          subjected to assessment as per Ext.P5, is not in dispute.<\/p>\n
          The rate of tax applied is not in dispute.            The<\/p>\n
          classification of the building as “other building” is also<\/p>\n
          not in dispute. Even if I were to take that any among<\/p>\n
          those four indicie is one, which would have enabled a<\/p>\n
          rectification under Section 15(1) of the B.T.Act, none<\/p>\n
          of those grounds exist.”<\/p><\/blockquote>\n
      9.    In the facts of this case also none of the above 4<\/p>\n
incidents is in existence which may apparently be cited as an<\/p>\n
error or mistake which can be rectified under Section 15.<\/p>\n
Putting up plinth area of a “building”, assessment of which<\/p>\n
was already completed in the name of another person, with<\/p>\n
that of the building of the petitioner, is an exercise far away<\/p>\n
from the scope of rectification of a mistake, which is<\/p>\n
conferred under Section 15(1) of the Act. Therefore going by<\/p>\n
the dictum laid in the decisions cited above, the impugned<\/p>\n
proceedings is unsustainable, is the contention of the<\/p>\n
petitioner.\n<\/p>\n
      10. The learned Government Pleader on the other hand<\/p>\n
argued that the reason for rectification in the case at hand is<\/p>\n
a valid reason coming within the illustrations given in the<\/p>\n
decision of Kurian George’s case (cited supra). The earlier<\/p>\n
assessment was happened to be finalised without application<\/p>\n
W.P.(C).26613\/07                -9-\n<\/p>\n
\nof valid principles of law and therefore it is a mistake<\/p>\n
apparent on the face of the record, is the contention. As<\/p>\n
discussed above, the question as to whether Explanation 2 to<\/p>\n
Section 2(e) will apply or not depends on the factual aspects<\/p>\n
of ownership and also on the factual aspect as to who had<\/p>\n
expended for construction of the buildings. If the assessing<\/p>\n
authority had completed the assessment on the basis of<\/p>\n
certain factual aspects available at an earlier occasion, can it<\/p>\n
be rectified under Section 15 on the basis of an allegation<\/p>\n
that those factual aspects were not sufficient for separate<\/p>\n
assessment? I do not find any wrong application of law in<\/p>\n
such manner. Erroneous acceptance of any factual situation<\/p>\n
cannot be pointed out as a reason for rectification, because<\/p>\n
the same is not an error apparent on the face of record.<\/p>\n
Therefore I am not in agreement with the contentions that<\/p>\n
there is any wrong application of law which warranted<\/p>\n
invoking of Section 15.\n<\/p>\n
      11. Learned      Government    Pleader    attempted    to<\/p>\n
distinguish the facts of Lisha Babu’s case (cited supra) from<\/p>\n
the facts of the case at hand and argued that it is a case<\/p>\n
where the construction of the additional area was completed<\/p>\n
after the initial assessment. But I do not think it makes any<\/p>\n
W.P.(C).26613\/07               -10-\n<\/p>\n
\ndifference because the structure is one and the same and<\/p>\n
ownership of distinct area was found to be separate, during<\/p>\n
the earlier assessment.     Since the question is regarding<\/p>\n
separate ownership which is basically a factual aspect, I am of<\/p>\n
the considered opinion that it will not come within four<\/p>\n
corners of an “error or mistake apparent on the record” which<\/p>\n
is contemplated under Section 15 of the Act.<\/p>\n
      12. Under the above circumstances I am of the opinion<\/p>\n
that Ext.P7 proceedings and Ext.P8 demand are not<\/p>\n
sustainable in law as there exists no valid reason for<\/p>\n
rectification of mistake under Section 15 of the Act.<\/p>\n
Consequently the writ petition is allowed and Ext.P7 and P8<\/p>\n
are hereby quashed.\n<\/p>\n
      13. Needless to say that amount if any deposited<\/p>\n
towards the disputed demand shall be refunded to the<\/p>\n
petitioner without any further delay.\n<\/p>\n<\/p>\n
                           C.K.ABDUL REHIM, JUDGE.\n<\/p>\n
okb<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Jose vs Village Officer on 30 March, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 26613 of 2007(R) 1. JOSE, AGED 61 YEARS, … Petitioner Vs 1. VILLAGE OFFICER, … Respondent 2. TAHSILDAR,CHAVAKKAD TALUK. For Petitioner :SRI.P.SANTHOSH (PODUVAL) For Respondent :GOVERNMENT PLEADER The Hon’ble MR. Justice C.K.ABDUL REHIM Dated :30\/03\/2010 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-174872","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJose vs Village Officer on 30 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jose-vs-village-officer-on-30-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jose vs Village Officer on 30 March, 2010 - 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