C V LAKSHMANAN Vs. TAHSILDAR

JUDGEMENT

(1.) The petitioner put up a commercial building in R.S. No. 96/1 and 310/2 of Payyannur amsom within the Payyannur Municipality, which was assigned Door Nos. 12/390 to 400 by the Payyannur Municipality. The building was assessed to building tax under the Kerala Building Tax Act, 1975 on the basis that its capital value was Rs. 4,14,000/- Tax of Rs. 15,480/- was accordingly levied as per order dt. 27.1.1991. On 2.2.1994 the petitioner was given Ext. P1 notice stating that there are some errors apparent in the assessment of capital value and that the assessment was proposed to be modified. The petitioner is aggrieved that though he filed Ext. P2 objections, the assessment was modified casting an additional burden of Rs. 12,270/- on the petitioner vide Ext. P3 order. He is also aggrieved that the appeals filed by him before respondents 2 and 3 were both dismissed vide Exts. P4 and P5 orders. The petitioner put up a commercial building in R.S. No. 96/1 and 310/2 of Payyannur amsom within the Payyannur Municipality, which was assigned Door Nos. 12/390 to 400 by the Payyannur Municipality. The building was assessed to building tax under the Kerala Building Tax Act, 1975 on the basis that its capital value was Rs. 4,14,000/- Tax of Rs. 15,480/- was accordingly levied as per order dt. 27.1.1991. On 2.2.1994 the petitioner was given Ext. P1 notice stating that there are some errors apparent in the assessment of capital value and that the assessment was proposed to be modified. The petitioner is aggrieved that though he filed Ext. P2 objections, the assessment was modified casting an additional burden of Rs. 12,270/- on the petitioner vide Ext. P3 order. He is also aggrieved that the appeals filed by him before respondents 2 and 3 were both dismissed vide Exts. P4 and P5 orders.

(2.) I have heard both sides. The learned Government Pleader supports the impugned orders on the ground that section 15 of the Act confers sufficient power on the Assessing Authority to re-open assessments and that it was after considering the objections filed by the petitioner that the assessment was modified vide Ext. P3 order. It was also stated that the petitioner failed to produce sufficient evidence to show that the proposal contained in Ext. p1 was incorrect. Yet another argument is that the ground floor of commercial buildings would attract better rent and in that perspective it has to be assessed at a larger rate than the rate applied to the first floor and that it was the audit authority who pointed out the said defect which led to issuance of Ext. P1 notice.

(3.) Having heard both sides, I think that the petitioner is entitled to succeed for more than one reason Section 15 of the Act does not confer absolute power on the Assessing Authority to modify assessments once completed. On the other hand, very limited powers alone are conferred on the authority under Section 15. For the sake of convenience the section is quoted hereunder. Rectification of Mistake :- (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, of 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 : 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) Whether 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. What is allowed under the section is only rectification of a mistake and that too only if the mistake is apparent on the face of the records. The original assessment order did not refer to the basis on which the two stories were valued. Ext. P1 notice also did not specify that the error which is to be rectified is the fixation of capital value for the ground floor at a rate different from that of the first floor or that the ground floor has to be fixed with more capital value. Such being the case, the petitioner could not have filed proper objections with regard to the proposal. What was mentioned in Ext. P1 was only that there were errors which the petitioner countered by filing Ext. P2. Even in Ext. P3 order there is no mention that the mistake rectified is the adoption of the criteria for fixing capital value in respect of the ground floor and the first floor.