KRISHNA PILLAI Vs. TAHSILDAR

JUDGEMENT

(1.) The assessment of the petitioner's building under the Building Tax Act, 1975 (the Act) was done on a capital value of Rs. 2,90,000/-, to a tax of Rs. 7,500/- as per Ext. P4 order of assessment. The petitioner accepted the assessment and paid the tax demanded. As disclosed from the files, this assessment was completed on the basis that the annual value of the ground floor was Rs. 9,000/-, that of the first floor Rs. 7,500/- and of the second floor Rs. 12,500/-, aggregating Rs. 29,000/-, ten times of which constituted the capital value under S.6(1) of the Act. It was discovered later that the annual value adopted for the first and second floors was less than the annual value actually fixed by the Haripad Panchayat, which was Rs. 14,400/- for the first floor, and Rs. 15,000/- for the second floor, so that the aggregate annual value for the entire building was Rs. 38,400-. In that event the capital value, on which the assessment had to be completed, was Rs. 3,84,000/- and not Rs. 2,90,000/- fixed earlier. Therefore, after issuing notice and inviting objections, the assessing authority passed Ext. P8 order rectifying the earlier order Ext. P4 refixing the capital value at Rs. 3,84,000/-, with a tax liability of Rs. 13,380/-. The petitioner was called upon to make payment of the balance amount of Rs. 5,880/-. The petitioner challenges Ext. P8.

(2.) According to the petitioner, the annual value fixed for the first and second floors under Ext. P8 was excessive and, therefore, the assessing authority should have stuck to the original assessment. But then, Ext. P8 is based on the annual value fixed by the local authority, which was Rs. 14,400/- and Rs. 15,000/- respectively for the first and second floors, besides Rs. 9,000/- for the ground floor. The charge to tax under S.5 of the Act read with the Schedule thereto (before the amendment by Act 3 of 1992) was on the capital value of the building. S.2(f) read with S.6(1) lays down that for the purpose of determining the capital value (which is ten times the annual value), the annual value of the building, shall be the annual value fixed for the building in the assessment books of the local authority, within whose area the building is situate. It is only when the assessing authority is of opinion that the annual value fixed by the local authority is too low, that he is permitted to go behind it and fix the annual value himself, under S.6(2) of the Act. A departure from the annual value fixed by the local authority is, therefore, possible only if it is considered to be lower than what it should be. A combined reading of sub-sections (1) and (2) of S.6 thus leads to the inevitable conclusion that while an assessing authority may fix the annual value at a figure higher than that fixed by the local authority, he cannot adopt a lesser amount as annual value for the purpose of fixing the capital value for assessment under the Act. The assessment may be at an amount of annual value higher than that fixed by the local authority, but never lower. That is what happened in this case. The original assessment was on an annual value of Rs. 29,000/- which was less than the annual value of Rs. 38,400/- fixed by the local authority. The assessment was thus not in accord with sub-sections (1) and (2) of S.6 and was vitiated by an apparent error liable to be rectified under S.15. It was, therefore, that the assessing authority refixed the capital value by the process of rectification under Ext. P8 and made it in accord with the provisions of the Act. Ext. P8 is, therefore, beyond challenge. -

(3.) Counsel for the petitioner was very vehement in his attack on Ext. P8 with the plea that the assessing authority under the Act could fix the annual value at an amount less than the annual value fixed by the local authority. I have already held that there is no warrant for this plea, as sub-section (2) of S.6 authorises only an enhancement of the annual value and not a reduction. Counsel also submitted, based on Exts. P9 and P10 certificates regarding the rent fetched for the building, that the annual value fixed , by the local authority was on the high side. This contention of counsel is not entertainable for the reason that if the fixation by the local authority was excessive, the petitioner should have taken up the matter in statutory appeal before the local authority itself. He cannot collaterally challenge it in a proceeding relating to assessment under the Act, especially when the local authority is not a party to this writ petition. Ext. P8 was rightly passed by the assessing authority and I do not find any reason to interfere with the same.