MOOPAN MOTORS PVT LTD Vs. TAHSILDAR

JUDGEMENT

(1.) THE appellant is a company engaged in the sales and after sales service and repair of Toyota vehicles. The building (show room etc.) owned by the appellant was assessed under the Kerala Building Tax Act (for short "the Act"),"during the year 2005. The total plinth area was 3529. 14 sq. m. The assessing authority found that 1287 sq. m is being used as a workshop and therefore, that area cannot be assessed and exempted the same under S. 3 (1) (b) of the Act. The balance is 2242. 14 sq. m. the tax assessed was at Rs. 4,74,750/ -. that was paid by the appellant. Ext. P7 notice was issued, purported to be under S. 15 of the Act, stating that certain discrepancies have been noticed in the assessment and that there is a proposal to re-assess the tax imposed on the building. S. 15 (3) of the Act clearly says that the assessee should be given an opportunity to show cause, if there is a proposal to enhance the tax. A notice, which merely says that the assessment needs re-assessment is not a notice in accordance with Law: S. 15 (3) of the Act reads as follows:

(2.) IN Ext. P7, the assessing authority has not shown why the tax should be enhanced. Therefore, Ext. P7 is invalid for re-opening the proceedings under S. 15 of the Act. Ext. P7 reads as follows:

(3.) NOTICE under S. 15 (3), without disclosing reason for rectification by which an assessee is burdened is denial of an effective opportunity and it cannot be treated as a valid notice at all, as stated by this Court in Shajahan v. Tahsildar (2000 (3) KLT 143 ). It is contended that another mode of assessment is not a matter for rectification of the error, because change of method of assessment is not a matter that can be done in a rectification order under S. 15 of the Act. By way of rectification, another method of assessment can be adopted or re-assessment cannot be made as held in P. P. Yousef and Brothers v. State of Kerala (1993 (2) KLT 59 ). Audit objection (ref. 2 in the notice)also can be a ground for rectification of the error, if assessment is rectified on the basis of an audit note, it cannot be stated that there is an error apparent on the face of the record and it cannot be rectified by using powers under S. 15, as held in Kurian george v. Tahsildar (1995 (2) KLT 457 ). There is no provision in the Act for reopening an assessment, which has already been concluded, except by way of an appeal/revision/rectification as specifically mentioned in the Act. In Ext. P9, it is stated that the plinth area was increased stating that assessment for a total area of 3690. 96 sq. m is necessary. It is also noticed that an additional shed has been newly constructed measuring to 161. 82 sq. m. Nothing is mentioned in Ext. P7 regarding these matters. Assessmenton new additional construction under S. 15 (3) isdifferentfrom rectification of a mistake under S. 15 of the Act. It is the contention of the appellant that there is no newly constructed area liable to tax. Learned singlejudgealso held that workshop and service station are to be exempted from assessment. Only if the claim for exemption is disputed, there is necessity for reference to the Government under S. 3 (2) and merely because the claim for exemption is allowed without referring the matter to the government, it cannot be stated that there is a mistake apparent on the face of the record warranting rectification. In any event, we have already held that in view of the deficiency in the notice, as no reasons are stated in Ext. P7, it cannot be termed as a proper notice under S. 15 (3) and the notice itself is illegal. Consequently, Exts. P7, p9 and P10 are set aside. This will not prevent the respondents from taking appropriate proceedings, if tax is payable, if otherwise permissible under law. Writ Appeal is allowed.