Allowed

Lulu International Shopping Mall Private Limited, v. District Collector

Kerala HC7 Aug 2023WP(C)/702/2020

Case brief

AI extract

What is this about?

The Single Judge held that a rectification notice issued under Section 15 of the Kerala Building Tax Act beyond the three-year limitation period is without jurisdiction. Consequently, the impugned assessment and revision orders were declared void ab initio and set aside.

What did the court decide?

The impugned orders (Ext.P4 and P6) are set aside as nullity; authorities are not barred from future lawful action.

Lulu International Shopping Mall Private Limited, Vs… — Writ and Judicial Review | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

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MONDAY, THE 7^TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945

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WP(C) NO. 702 OF 2020

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PETITIONER/S:

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LULU INTERNATIONAL SHOPPING MALL PRIVATE LIMITED, REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY M.A.NISHAD, EDAPPALLY, KOCHI - 682 024. BY ADVS. P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER SMT.C.K.SHERIN SMT.ANJALI MENON

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RESPONDENT/S:

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*1 DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI - 682 030. 2 TAHSILDAR, KANAYANNUR TALUK, TALUK OFFICE, ERNAKULAM, KOCHI - 682 011. 3 ADDL.R3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. (IMPLEADED AS AS PER ORDER IN IA/1/2020 DATED 13-03-2020) BY ADVS. ADVOCATE GENERAL OFFICE KERALA SHRI.S.KANNAN, SENIOR G.P.(GP-49)

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OTHER PRESENT:

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S.KANNAN -SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)NO.702 OF 2020

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JUDGMENT

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The present writ petition has been filed under Article 226 of the Constitution of India impugning order Ext.P4 dated 20.10.2018 issued by the second respondent - Thahasildar, Kanayannur Taluk, whereby the assessment order in respect of the mall and parking plaza had been revised and both the mall and the parking plaza have been treated as one single unit for the purpose of building tax and the assessment proceedings had been completed in Ext.P4, which is impugned in the present writ petition.

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The learned Senior Counsel appearing for the petitioner submits that he is not impugning the assessment proceedings on merit. But he is confining his submission to the question of limitation for issuing the notification for rectification under Section 15 of the Kerala Building Tax Act, 1975 (for short, the Act).

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In respect of the mall, the assessment proceedings were completed on 06.03.2013 and assessed amount was

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W.P.(C)NO.702 OF 2020

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Rs.2,41,84,800/-, which was paid by the petitioner. It appears that the petitioner thereafter constructed a multilevel parking plaza cum sewage treatment plant adjacent to the mall, for which, the assessment proceedings were completed on 13.02.2015. Notice under Section 15 of the Act was issued for rectification of these two assessment orders treating the mall and the adjacent parking plaza and sewage treatment plant as one single unit. The notice was issued on 30.04.2018 and in respect to the said rectification notice final rectification assessment was completed on 20.10.2018.

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Sri.S.Kannan, learned Government Pleader does not dispute that the limitation provided under Section 15(1) rectification is for three years from the date of any assessment order passed on its own motion by the assessing authority or on an application of the assessee where there is an error apparent on the face of record. He is not in position to dispute that the notice dated 30.04.2018 itself was issued beyond the limitation period of three years and the rectification order is much beyond the limitation period of three years.

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W.P.(C)NO.702 OF 2020

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Section 15(1) of the Act, which gives power to the assessing authority to rectify any mistake apparent from the record, would read as under:

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15. Rectification of mistakes .- (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, or 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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Considering the facts of the case, I am of the view that the notice dated 30.04.2018 issued under Section 15(1) of the Act and the rectification order dated 20.10.2018 are clearly beyond the limitation provided under Section 15(1) of the Act and therefore without jurisdiction. It appears that the petitioner had filed revision against the order dated 20.10.2018. However the said revision came to be dismissed by Ext.P6 order dated 26.12.2019 which is impugned in the

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W.P.(C)NO.702 OF 2020

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present writ petition.

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Considering the facts of the case, I find that the notice as well as the rectification order are a nullity and void ab initio inasmuch as notice was issued beyond the limitation prescribed and, therefore, further proceedings pursuant to the notice are a nullity in the eyes of law. Present writ petition is allowed. The impugned orders, Exts.P4 and P6 are hereby set aside. It is made clear that the authority are not precluded from initiating any future course of action which is permitted under law on the ground of any additions or increase in the plinth area by the petitioner to the mall.

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Sd/-

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DINESH KUMAR SINGH

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JUDGE

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Shg

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W.P.(C)NO.702 OF 2020

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APPENDIX OF WP(C) 702/2020

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PETITIONER EXHIBITS EXHIBIT P1	TRUE COPY OF ORDER NO.B3-2232/13 DATED 6/3/2013 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2	TRUE COPY OF ORDER NO.B5-1775/15 DATED 13/2/2015 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3	TRUE COPY OF ASSESSMENT NOTICE DATED 30/4/2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P4	TRUE COPY OF ASSESSMENT ORDER NO.B3-2232/13 DATED 20/10/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5	TRUE COPY OF REVISION PETITION NO.229651 OF 2018 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P6	TRUE COPY OF ORDER NO.DCEKM/14622/2018-B10 DATED 26/12/2019 ISSUED BY THE 1ST RESPONDENT.
RESPONDENTS'EXTS
EXHIBIT R2(a)	TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE CORPORATION OF KOCHI DATED 10/11/2014
EXHIBIT R2(b)	TRUE COPY OF THE AUDIT ENQUIRY NO.28 DATED 30/03/2017
EXHIBIT R2(c)	TRUE COPY OF THE COMMUNICATION DATED 03/11/2017 ISSUED BY THE LAND REVENUE COMMISSIONER
EXHIBIT R2(d)	TRUE COPY OF THE RETURNS SUBMITTED BY THE PETITIONER IN FORM II PERTAINING TO THE ADDITIONAL CONSTRUCTION OF 412 SQUARE METER
EXHIBIT R2(e)	TRUE COPY OF THE NOTICE DATED 22/05/2018 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER
EXHIBIT R2(f)	TRUE COPY OF THE REPRESENTATION DATED 28/06/2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT
EXHIBIT R2(g)	TRUE COPY OF THE PROCEEDINGS NO S.C1/30/2021/REV DATED 11/01/2023 ISSUED BY THE GOVERNMENT

Lulu International Shopping Mall Private Limited, v. District Collector

Case brief

What is this about?

What did the court decide?

Lulu International Shopping Mall Private Limited, v. District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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