C.H. Kunhamina v. Tahsildar (Assessing Authority), Talipparamba Taluk, Kannur; District Collector, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934** ## **WP(C).No. 18054 of 2007 (Y)** ## **---------------------------** ## **PETITIONER(S):** **-------------------------** **C.H.KUNHAMINA, W/O.KURIKALE SADULI, VELLUR AMSOM, KANDOTH DESOM, PERUMBA, PAYYANNUR, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT(S):** **---------------------------** **1. THE TAHSILDAR (ASSESSING AUTHORITY), TALIPARAMBA TALUK, KANNUR.** **2. THE DISTRICT COLLECTOR, KANNUR.** **R1 & R2 BY GOVT. PLEADER SMT.RINNY STEPHEN CHAMAPARAMBIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.18054/2007 Y** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF AN ORDER IN FORM NO.V, UNDER RULE 8(1) OF THE KERALA BUILDING TAX ACT BEARING REF.D3.2006/01 DATED 3/01 ISSUED BY THE 1ST RESPONDENT.** - **P1(A): COPY OF NOTICE ALONG WITH P1 DATED 22/2/2001 ISSUED BY THE 1ST RESPONDENT.** - **P2: COPY OF NOTICE IN FORM NO.V, BEARING REF.NO.2006/01/C3 DATED SEPTEMBER, 2003 ISSUED BY THE 1ST RESPONDENT.** - **P2(A): COPY OF NOTICE IN FORM VII DATED OCTOBER 2003 ISSUED BY THE 1ST RESPONDENT.** - **P3: COPY OF JUDGMENT DATED 19/03/2004 PASSED IN WPC.NO.40036/03.** - **P4: COPY OF OBJECTION DATED 3/1/2005 PREFERRED BY THE PETITIONER.** - **P5: COPY OF AN ORDER BEARING REG.NO.C3.875/2004 DATED 23/2/2006.** ## **RESPONDENT'S EXHIBITS:** ## **N I L** ## **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 18054 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of August , 2012 ## **JUDGMENT** Correctness and sustainability of Ext.P5 order passed by the first respondent virtually modifying the earlier assessment as per Ext.P1, invoking the power under Section 15 of the Kerala Building Tax Act is under challenge; mainly on two grounds. Firstly, that no reassessment is possible invoking the power under Section 15 and secondly, that the proceedings are barred by limitation, as the time specified under Section 15 is 'three years', while Ext.P5 has been passed, admittedly much after the period of limitation. 2. The petitioner's husband, who is working in the gulf constructed a building in the concerned property which was subjected to building tax assessment as early as in March 2001, vide Ext.P1 fixing a total liability of Rs. 27,000/- in respect of the plinth area of 455 Metre Square. The said liability was satisfied by the petitioner then and there. Years thereafter, the petitioner was served with Ext.P2 WPC.No.18054/2007 2 proceedings in September 2003 stating that the building tax was refixed at Rs. 54,000/- and after giving credit to the amount already assessed as per Ext.P1, the balance liability was shown as Rs. 27,000/- which was required to be satisfied in four quarterly instalments. The petitioner approached this Court challenging the above proceedings, by filing W.P.(C)No.40036/2003, mainly raising all these contentions as aforesaid, also pointing out that Ext.P2 proceedings were finalised, without issuing any notice. After considering the position as above, Ext.P2 order was set aside by this Court as per Ext.P3 judgment dated 19/03/2004, directed the concerned assessing authority to issue a notice to the petitioner, enabling him to file statement of objections and to have the matter considered accordingly. It was also directed to consider the plea of limitation, in the order to be passed by the assessing authority, pursuant to Ext.P3. 3. In the due course, the petitioner was served with notice, on receipt of which Ext.P4 statement of objections dated 3.1.2005 was submitted, reiterating the contentions including the plea of limitation. After considering the same, the first respondent passed Ext.P5 order WPC.No.18054/2007 3 dated 23/02/2006 observing that the objection raised in Ext.P4 was not sustainable and accordingly restored Ext.P2 in the same form showing the balance liability to be cleared by the petitioner to an extent of Rs.27,000/-, which in turn is under challenge. 4. The first respondent has filed a counter affidavit seeking to sustain Ext.P5 and the course and events. It is stated that the plea of limitation is not applicable, at the same time, reiterating that Ext.P5 is not a re-assessment order, but an order passed under Section 15(3). The plea of limitation is sought to be got over, referring to the fact that Ext.P2 order was passed well within the period of three years and Ext.P5 necessitated to be passed only because of the intervention made by this Court, as per Ext.P3. 5. The petitioner has filed a reply affidavit reiterating the contentions in the writ petition and disputing the averments in the counter affidavit. During the course of hearing, the learned counsel for the petitioner submits that the course and proceedings pursued by the first respondent is per se wrong and illegal. Firstly, for the fact that the specific direction given by this Court as per Ext.P3 judgment to WPC.No.18054/2007 4 consider the plea of limitation has not been adverted to at all and as such, Ext.P5 is liable to be set aside on this score alone. The learned counsel also submits with reference to the law declared by this Court in **Aradhana Lodge v. Tahsildar** (1990(1) KLT 33), that a notice is mandatory for any order to be passed under Section 15(1) and admittedly, since Ext.P2 order was passed without any notice, it cannot be treated as a valid order passed within time. Ext.P5 order which is stated as now passed is much beyond the statutory prescription and hence it is not liable to be sustained. The learned counsel further submits that the main ground for re-opening the assessment is referring to the fact that the Panchayat concerned was a 'special grade Panchayat' and as such, the rate of tax was almost double, which in turn is sought to be rectified by passing Ext.P5. This according to the petitioner virtually does not come within the purview of Section 15, more so, in view of the law declared by this Court in **Karunakaran Nair v. Tahsildar, Changanacherry** ( 2000 (2) KLT 705) and thus seeks to intercept the impugned order. 6. The learned Government Pleader submits that, the WPC.No.18054/2007 5 Panchayat was a special grade Panchayat on the relevant date and this being the position, the fixing of liability ought to have been at the appropriate rate which was omitted to be considered or properly applied when Ext.P1 assessment was made. It was in the said circumstances, that the error required to be rectified invoking the power under Section 15, thus leading to Ext.P2 order and later by Ext.P5 order pusuant to Ext.P3 judgment. This Court finds it difficult to accept the said proposition for the following reasons. 7. Section 15 of the Act reads as follows : “ **Rectification of mistakes** - (1) The appellate authority or the revisional authority may, at any time within three years from the date of an order passed by it on appeal or revision, as the case may be, and the assessing authority may, at any time within three years from the date of any assessment or order passed by it, or its own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or order, as the case may be, and shall, within the like period, rectify any such mistake which has been brought to its notice by an assessee: WPC.No.18054/2007 6 Provided that no such rectification shall be made which has the effect of enhancing an assessment or reducing a refund unless the assessee has been given a reasonable opportunity of being heard in the matter. (2) Where any such rectification has the effect of reducing the assessment, the assessing authority shall make any refund which may be due to such assessee. (3) Where any such rectification has the effect of enhancing the assessment or reducing a refund, the assessing authority shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable; and such notice of demand shall be deemed to be issued under Section 10 and the provisions of this Act shall apply accordingly.” The terminology used denotes that the power under Section 15 is to rectify the “error apparent on the face of the record”. This virtually is akin to the power of review as exercisable under Section 115 of the CPC and similar power available under different statutes, to meet such situation. When the learned Government Pleader submits that there is an 'error apparent on the face of the record' with reference to the factual status of the Pachayath as a Special Grade Panchayath, it WPC.No.18054/2007 7 should be such a mistake which is apparent on the face of the record ie. on the face of Ext.P1. A mere perusal of Ext.P1 will reveal that there is absolutely no reference to the status of the Panchayat anywhere in Ext.P4 or as to the rate of tax applicable in respect of the concerned Panchayath for fixing the quantum of liability. This being the position, it cannot be said that, it is an error apparent on the face of the record, so as to have invoked the power under Section 15 and to have passed Ext.P2 or Ext.P5. 8. The learned Government Pleader submits that the plea of “reassessment” was raised by the petitioner in the earlier round of litigation leading to Ext.P3, which however was not answered by this Court in favour of the petitioner and hence not entertainable at this point. There is no dispute for the respondents that Ext.P2 order was passed after issuance of any notice and it is for this reason, that the same was set aside directing the assessing authority to pass fresh orders after issuing notice and considering the objections. What has been done by the first respondent is that the tax liability fixed as per Ext.P1 to an extent of Rs.27,000/- has been simply doubled vide Ext.P2, WPC.No.18054/2007 8 stating that the Panchayat is a 'Special Grade Panchayat' ( though Ext.P2 was subsequently set aside as per Ext.P3 leading to Ext.P5 revised order ). This virtually amounts to a reassessment of the tax, adopting the proper rate by virtue of the different status of the Panchayat. This cannot be treated as an error apparent on the face of the record. The contention of the revenue fails on this count as well. 9. Coming to the plea of limitation, there was a specific direction given by this Court vide Ext.P3, while ordering fresh assessment, to consider this aspect as well. It is obvious from Ext.P5 order passed by the first respondent that the said respondent has given only scant regards to the direction given by this Court, which cannot but be deprecated in the strongest possible words. Absolutely nothing has been mentioned by the first respondent in Ext.P5 as to the plea of limitation. It may be true that Ext.P2 order was passed by the first respondent within a period of three years as contemplated under Section 15. But it was admittedly passed without any notice to the assessee and hence not a valid order. It was for this reason, that the same was set aside vide Ext.P3 directing to pass fresh order. The said WPC.No.18054/2007 9 judgment is dated 19/03/2004. It took nearly seven months for the first respondent to issue notice dated 21/12/2004 with regard to the further proceedings, on receipt of which Ext.P4 reply was submitted on 03/01/2005. It was almost one year thereafter, that Ext.P5 order was passed in the year 2006. Obviously, the “valid order” comes only by way of Ext.P5 ie. much after three years. The earlier order Ext.P2 passed within three years, being an invalid order, the plea of limitation is very much attracted and the petitioner is entitled to succeed. 10. Yet another aspect to be considered is that the first respondent has observed in Ext.P5 order that the objection raised by the petitioner in the statement of objections dated 3.1.2005 ( Ext.P4) is not correct or sustainable . Why it is not correct or sustainable has not been stated anywhere in Ext.P5. This being the position, it cannot be regarded as a 'speaking order' as well. 11. In the above circumstances, this Court does not require any second thought to hold that Ext.P5 order is per se wrong and illegal in all respects. Accordingly, the said order is set aside. It is declared that the petitioner is no more liable to satisfy any amount in respect of the WPC.No.18054/2007 10 building tax assessment already completed vide Ext.P1. Writ petition is allowed. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** sv. WPC.No.18054/2007 11