MAHAMOOD Vs. TAHSILDAR

JUDGEMENT

(1.) Petitioners are the owners of a building construction of which was completed as early as on 1.2.1993. Petitioners filed a return in time to the Tahsildar, Thalassery showing the completion date as 1.2.1993 under the Building Tax Act. But the assessment was delayed for no fault of the petitioners. Assessment order was passed only on 26.11.1997 with the rate of tax existing on the date of assessment. By that time when assessment order was passed the rate in the Schedule was changed. Petitioners questioned the assessment on two grounds. According to the petitioners the measurement was not correct. Secondly the rate of tax should be based on the date of completion of the building, the taxable event. The matter was considered by the appellate authority. The appellate authority wanted a further measurement and remanded the matter for remeasuring. With regard to the rate of tax, there was no finding as the matter was remanded to the authority. Again the matter was considered and it was reported that it was correctly measured and measurement is 966.92 M2. However, the authority did not go through the contention of the petitioners regarding the rate of tax as that contention was not considered by the appellate authority. Ext. P3 shows that appellate authority did not make any finding regarding the rate of tax. In fact, the operative portion is as follows:

(2.) Learned Government Pleader relied on S.5(2) of the Building Tax Act. S.5(1) of the Act is the charging section which is as follows :

(3.) S.5(2) also says that rate of tax for assessment on such buildings constructed before appointed day should be as mentioned in the Schedule. It may possibly refers to the schedule as existing on the appointed day, when method of assessment was changed, even though taxable event was before the appointed day. Since the building herein was constructed after the change of method of assessment, this question may not be of much relevance in this case. In any event as a general rule to be followed in all assessment under the Act, it is not stated that rate of tax should be based on the Schedule existing as on the date of assessment. S.5(2) in its plain terms say that method of assessment should be on the basis of plinth area if assessment is finalised (for whatever reason) after the appointed day. There is no clear express provision that rate of tax for assessment should be based on the schedule as existing on the date of assessment and not on taxable event. In Maxwell on The Interpretation of Statutes (Twelfth Edition) at page 256 it is stated as follows: