MARKOSE Vs. TAHSILDAR

JUDGEMENT

(1.) Heard learned counsel on both sides.

(2.) The petitioner along with two others had purchased a plot of land comprised in Sy. Nos. 253/1, 513/1 and 513/3 of Ernakulam Village. As per registered partition deed, being document No. 2242/85 of Ernakulam Sub Registry, the said land was partitioned by the petitioner and the other two parties. As per Ext. P1 partition deed the land was divided into six plots and three of the plots marked in the plan attached to Ext. P1 as A, A1 and A2 were allotted to the petitioner. A further partition of the land allotted to the petitioner and the buildings under construction on the said lands was made between the petitioner, his son and daughter by Ext. P2 partition deed dated 7-10-1985. Construction of building was commenced on the said plot by the petitioner, his son Mohan Markose and daughter Maya Markose and by allotting specific extent and portions of lands demarcating the share of each parties, the petitioner, his son and daughter had become absolute and separate owners of the land and buildings therein. After the completion of the construction of building, the Cochin Corporation assessed the building to property tax separately. Ext. P3 is the order of assessment passed by the Cochin Corporation fixing the half yearly property tax at Rs. 1,680/-. Thereafter, the petitioner filed building tax returns before the respondent herein who is the assessing authority under the Kerala Building Tax Act. The respondent assessed the building separately and the petitioner paid building tax based on separate assessment on 14-8-1987. Some time thereafter, notice was issued by the respondent to the petitioner and four others stating that the assessment already made on them treating the building as separate units is erroneous and therefore invoking the provisions under S.15 of the Kerala Building Tax Act the respondent proposed to revise the assessment. Ext P8 is the objection filed by the petitioner, his son and daughter before the respondent on 31-5-1989 stating that they have exclusive title and possession over the property consisting 9.021 cents of land and improvements comprised in Sy. Nos. 513/1, 2530/1 and 513/3 shown as plots A, A1 and A2 in partition deed No. 2242/85 of S.R.O., Ernakulam. It was specifically brought to the notice of the respondent the recital in the partition deed that the property is partitioned for the purpose of constructing separate buildings of the respective parties. Ext. P8 contains a specific statement to the effect that consequent to the partition deed the parties have executed written agreement (Reg. No. 3398/85) on 7-10-85 of S.R.O., Ernakulam to the effect that the property A is in possession of Dr. N.V. Markose, A1 is in possession of Maya Markose and A2 is in possession of Mohan Markose and hence it is clear that the properties including the building is in separate possession and ownership. The petitioner therefore claims that he is eligible to get the benefits provided in the Kerala Building Tax Act. Pursuant to Ext. P8, the petitioner's representative appeared before the then Tahsildar on 31-5-1989 and he was also heard.

(3.) The complaint of the petitioner as highlighted before me in this original petition is that nothing was heard from the respondent since 31-5-1989 till 4-8-1994, the date of Ext. P9 order wherein it is stated that it is proposed to revise the earlier assessment as according to the respondent the earlier assessment is passed on a mistake of fact. The case of the respondent is that the building is liable to be assessed as a composite unit and not as separate units as claimed by the petitioner. According to learned counsel for the petitioner, the petitioner produced all relevant documents before the then Tahsildar in 1989 itself in support of his claim for being treated as separate entities for the purpose of taxation under the Kerala Building Tax Act and thereafter nothing was heard from the then Tahsildar. That being so, the present Tahsildar - respondent herein who issued Ext. P9 order without affording an opportunity of being heard to the petitioner is acting in violation of the rules of natural justice and as such Ext. P9 is a nullity. It is a fundamental principle of judicial procedure that a person who hears himself, shall decide the case and not another person. See in this connection Nageswar v. A.P.S.R.T. ( AIR 1959 SC 308 ) and Union of India v. P.K. Roy ( AIR 1968 SC 850 at 858). Hence, if an officer who is bound under the law to give a personal hearing is transferred his successor in office cannot decide the matter without giving a fresh hearing. That apart, under the proviso to S.15 of the Act no rectification shall be made which has the effect of enhancing or reducing unless the assessee is given an opportunity of being heard in the matter. In the case on hand, the Tahsildar who issued Ext. P9 is not the officer who heard the petitioner's representation on 31-5-1989 and before whom the documents were produced. According to learned counsel for the petitioner, the officer who issued Ext. P9 can do so only after hearing the petitioner and affording an opportunity of being heard the petitioner. In short, the submission is that the officer who decides the matter should have heard the parties. A successor in office to the assessing authority cannot pass an order based on the pre-digested material left over by the predecessor authority. The officer who passes the order himself should really hear the party, satisfy himself regarding the genuineness or otherwise of the contention, apply his mind to the various aspects presented before him and then he should pass an order as otherwise it will result in manifest injustice. The authorities are legion on this point that the authority who hears should decide the matter as already noticed above. See in this context Messrs. Calcutta Tanneries (1994) Ltd. Calcutta v. Commissioner of Income Tax, Calcutta (AIR 1960 Calcutta 543), Ram Saran v. Income Tax Commissioner (AIR 1969 P & H 429) and Commissioner of Income Tax, West Bengal v. Smt. Chitra Mukherjee (1981) 127 ITR 252). The Calcutta High Court and the P & H High Court in all these cases took the view that the successor ITO cannot continue penalty proceedings when the said proceedings was left by his predecessor without giving the assessee a fresh opportunity of being heard. A Full Bench of the Patna High Court in Commissioner of Wealth Tax v. Sri Jagdish Prasad Choudhary (1995) 211 ITR 472) held that the assessee is entitled to an opportunity of being heard before the succeeding officer in a penalty proceedings under the Wealth Tax Act. The result of the above discussion is that personal hearing is a sine-qua-non of fair procedure and must be treated as a mandatory requirement on grounds of public policy and fair play. Viewed in the above perspective, I am of the opinion that the impugned order, Ext. P9 cannot be legally sustained as it has been passed by an officer who has not heard the petitioner.