Allowed

Babu Geevarghse v. Dist.Collector

Kerala HC19 Feb 2009WA/129/2009

Case brief

AI extract

What is this about?

The High Court allowed the writ appeal and set aside the demand-cum-assessment order (Ext.P1), appellate order, and revisional order. The court held that under Section 15 of the Kerala Building Tax Act, rectification cannot be made without providing a reasonable opportunity of being heard, especially to enhance an assessment, citing a violation of natural justice.

What did the court decide?

Ext.P1, appellate order, revisional order, and the impugned judgment are set aside. The writ appeal is allowed.

Babu Geevarghse Vs Dist.Collector — Property and Title | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930

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WA.No. 129 of 2009

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--------------------------AGAINST THE JUDGEMENT IN O.P.NO. 17295/1999.

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APPELLANT:

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-------------------

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BABU GEEVARGHESE PHILIPOSE, THADATHIL, BROADLANDS, DEVALOKOM P.O.,KOTTAYAM.

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BY ADV. MR.BECHU KURIAN THOMAS.

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RESPONDENTS:

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------------------------

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1. THE DISTRICT COLLECTOR,KOTTAYAM

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2. THE SUB COLLECTOR, KOTTAYAM

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3. THE TAHSILDAR, KOTTAYAM.

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R1 TO R3 BY GOVT. PLEADER MR. K.P. PRADEEP.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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J.B. Koshy,Ag.C.J. & V.Giri, J.

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W.A.No. 129 of 2009

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Dated this the 19^th day of February, 2009

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Judgment

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Koshy, Ag.C.J.

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Ext.P1 is a demand-cum-assessment order passed under section 15 of the Kerala Building Tax Act, 1975 (for short 'the Act'). The writ petitioner was the owner of 22.668 cents of land in Kottayam village wherein a multi-storeyed building was constructed. It is the case of the petitioner that this building was constructed by three persons and used for doing different business. The assessment of the building under the Building Tax Act was completed by assessment order dated 24.8.1994. It is the further case of the petitioner that thereafter on 16.3.1996, the assessment was rectified by Ext.P1. Detailed reasonings are not mentioned in Ext.P1. Petitioner filed Ext.P2 appeal. From the appellate order, it can be seen that the method of assessment itself is challenged as original assessment was made in the name of appellant, his wife and mother and the present assessment is made as if it is a single unit. Ext.P3 is the revisional order wherein it is stated that the original order is rectified because of the audit report of the Accountant General.

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W.A.No.129/2009

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Various contentions were raised attacking the above provision. First ground is that no opportunity of hearing was granted before rectifying the mistake. Secondly, it was contended that method of assessment itself was changed which cannot be done by way of rectification as it is not correction of an apparent error. Thirdly, it was contended that rectification cannot be done on the basis of a direction from the Accountant General. Finally, it was contended that the entire demand on merit is also illegal. Section 15 of the Act reads as follows:

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“15. Rectification of mistake:- The appellate authority or the revisional power 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:

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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.

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(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.

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W.A.No.129/2009

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(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.”

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The proviso to rule 15 (1) of the Act makes it compulsory that rectification cannot be made unless a reasonable opportunity of being heard in the matter is given. In the revisional order itself, the revisional authority noticed that the petitioner's first point is that no opportunity of hearing was granted before enhancing the tax and that was specifically contended, but, no mention was made regarding that aspect in the appellate order and in the revisional order. In these circumstances, on that ground alone, the assessment is liable to set aside. At the maximum, Ext.P1 can be treated only as a show cause notice and petitioner may reply it and after hearing the parties fresh decision shall be taken according to law, if rectification can be done as per law. All contentions can be taken up by the petitioner before the authority. Since we are setting aside Ext.P1 order and appellate order and revisional order on the ground of violation of principles of natural justice and violation of section 15 (1), we are not making any observatioin regarding the merits of other contentions raised by the

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W.A.No.129/2009

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appellant. Exts.P1, P2 and P3 and the impugned judgment are set

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aside.

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The writ appeal is allowed.

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J.B.Koshy Acting Chief Justice

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V. Giri

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Judge

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vaa

Babu Geevarghse v. Dist.Collector

Case brief

What is this about?

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Babu Geevarghse v. Dist.Collector

Case brief

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