Pulikkal Medical Foundation Medical Trust Hospital v. Tahsildar, Kanayannur Taluk & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936** ## **WP(C).No. 26493 of 2008 (D)** **----------------------------** **PETITIONER(S):** **---------------** **PULIKKAL MEDICAL FOUNDATION MEDICAL TRUST HOSPITAL, M.G.ROAD, KOCHI-16 REPRESENTED BY ITS MANAGING DIRECTOR, P.V.ANTONY.** **BY ADV. SMT.S.K.DEVI** **RESPONDENT(S):** **---------------** **1. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM.** **2. STATE OF KERALA, REPRESENTED BY ITS FINANCE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM** **R1 BY ADV. GOVERNMENT PLEADER SMT.K.T.LILLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 26493 of 2008 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF ORDER DTD.18.2.2005 EXT.P2: TRUE COPY OF ORDER DATED 16.2.2008 EXT.P3: TRUE COPY OF DEMAND NOTICE NO.B3-12040/98 EXT.P4: TRUE COPY OF REVENUE RECOVERY NOTICE U/S 7** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C).No.26493 of 2008 **.............................................................** Dated this the 1[st] day of December, 2014 ## **J U D G M E N T** The petitioner is a Company running a hospital by name Medical Trust Hospital. The construction of the first seven floors of the building is stated to have been completed prior to the commencement of the Kerala Building Tax Act. Taking note of the said fact Ext.P1 order dated 18.02.2005 was passed by the 1[st] respondent exempting the building from the levy of building tax on being convinced that the first seven floors of the building, that were constructed before 1972, were eligible for exemption from payment of building tax. The annexe building to the hospital was however assessed to tax by Ext.P1 order. Thereafter, by Ext.P2 order dated 16.02.2008 which is stated to have been received by the petitioner only on 27.05.2008, the 1[st] respondent assessed the first seven floors of the building to building tax in an amount of Rs.13,11,750/-. In the said order, reference is made to notices that were served on the petitioner and, thereafter, an audit objection that was received by the 1[st] respondent. The demand in Ext.P2 order is sought to be justified on the contention that the 1[st] respondent in Ext.P1 order had not relied on any document that was produced by the petitioner to substantiate his contention that the construction of the first seven floors was completed before the coming into force of the -2- W.P.(C).No.26493 of 2008 Building Tax Act. Ext.P3 is the notice of demand issued to the petitioner pursuant to Ext.P2 order and Ext.P4 is the revenue recovery notice that was served on the petitioner. In the writ petition, the petitioner impugns Exts.P2, P3 and P4 inter alia on the ground that respondent had no jurisdiction to pass Ext.P2 order when Ext.P1 order had already been passed by the 1[st] respondent exempting the first seven floors of the building from the levy of building tax. 2. A counter affidavit has been filed on behalf of the 1[st] respondent wherein it is stated that the revised assessment order was necessitated on account of the audit objection that was pointed out in respect of the exemption granted to the petitioner. In particular, it is pointed out that the Tahsildar while passing Ext.P1 order had not verified the records of the Corporation to ascertain whether the 1[st] seven floors of the building were in fact constructed before 01.04.1973. and further the petitioner had also failed to produce documents to prove that the building was constructed before 01.04.1973. It was under those circumstances that the 1[st] respondent was constrained to issue fresh notices to the petitioner and, thereafter, pass Ext.P2 revised assessment order assessing the first seven floors of the building also to building tax. -3- W.P.(C).No.26493 of 2008 3. I have heard Sri.S.K.Devi, the learned Senior counsel for the petitioner and Smt.K.T.Lilly, the learned Government Pleader appearing on behalf of the respondents. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I am of the view that the writ petition, in its challenge against Exts.P2, P3 and P4, must necessarily succeed. Ext.P1 assessment order was passed by the 1[st] respondent finding that the 1[st] seven floors of the building in question where constructed prior to the coming into force of the Kerala Building Tax Act, 1975. On the basis of the said finding, the 1[st] respondent held that the levy of building tax could not be made applicable to the 1[st] seven floors of the building. It is much thereafter that by Ext.P2 revised assessment order, the first respondent takes the stand that the earlier order was passed under a mistake. The revised assessment order is sought to be justified on the ground that by the said order, the first respondent is only rectifying a mistake that had crept into the earlier order passed by him. It is significant to note that Ext.P2 order is dated 16.02.2008 and is stated to have been received by the petitioner only on 27.05.2008. While Ext.P2 order is seen dated within the period of three years from the date of Ext.P1 order and, therefore, within the period stipulated under Section 15 of the Act for rectification of -4- W.P.(C).No.26493 of 2008 mistakes, the issue to be considered is whether the 1[st] respondent was in fact rectifying a mistake while issuing Ext.P2 order. A mere perusal of Ext.P2 order would indicate that it was passed pursuant to an audit objection that was noted in the matter of assessment of the building and further, that it takes a completely different view from what was taken in Ext.P1 order while completing the assessment against the petitioner. It is also significant to note that the respondents had not chosen to exercise the power under Section 13 of the Act to revise Ext.P1 order within the time prescribed for exercise of the said power under the Act. Ext.P2 order would clearly indicate that what has been done by the 1[st] respondent is to virtually review his earlier order namely Ext.P1. It is trite that under the guise of rectification of mistakes, the 1[st] respondent cannot exercise the power of review. The decision of this Court in **Yousef v. State of Kerala [1993 (2) KLT 59]** fortifies the view that I have taken. That apart, the 1[st] respondent does not have a power of review conferred on him under the Kerala Building Tax Act, 1975. It is well settled that the power of review has to be specifically conferred on a statutory authority for him to exercise such power. Thus in any view of the matter, Ext.P2 order cannot be sustained and consequently Exts.P3 and P4 notices seeking recovery of the amounts confirmed by Ext.P2 order also cannot be legally sustained. -5- W.P.(C).No.26493 of 2008 Resultantly, I quash Exts.P2, P3 and P4 and declare that the building tax assessment of the petitioner in respect of the first seven floors of the building shall stand concluded by Ext.P1 order of the 1[st] respondent. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns W.P.(C).No.26493 of 2008 -6-