P. C.CHERIAN v. THASILDAR

The petitioner-partnership firm had completed construction of 23 residential apartments in the year 2013. The apartments are numbered as 7/692A to 7/692W by the Aroor Panchayath. According to the petitioner, the construction of the said apartments was completed on 20.03.2013. The petitioner filed returns in respect of the building tax before the 1st respondent.

3. However, the 1st respondent issued notice for imposition of building tax, treating all apartments as one residential unit to which the petitioner filed reply on 08.08.2014. However, the 1st respondent passed the assessment order on 20.08.2014 in WPC No.39541 of 2022 3 Ext.P1(b). The petitioner filed appeal against the said assessment order before the 3rd respondent. According to the petitioner, petitioner had to make necessary deposit by filing the appeal vide the receipt dated 27.09.2014 (Ext.P1(c)). The 3rd respondent decided the appeal in favour of the petitioner vide the order dated 05.12.2015 and set aside Ext.P1(b) assessment order. The matter was remanded back for re-assessing the building tax in respect of the building constructed by the petitioner i.e, apartment Nos.7/692A to 7/692W. On remand, the impugned assessment orders have been passed in Exts.P7, P7(a), P7(b) and P7(c).

4. Learned counsel for the petitioner submits that the impugned assessment orders on remand are barred by limitation. He submits that Section 15 of the Kerala Building Tax Act, 1975, provides limitation of 3 years for assessing and passing the order levying building tax on the building. Learned counsel for the petitioner further submits that the Appellate Authority-the 3rd respondent issued certain direction WPC No.39541 of 2022 4 and observation and directed the assessing authority to pass fresh assessment order on remand taking into consideration of the observation and direction issued by the 3rd respondent in the order dated 05.12.2015. However, the assessing authority has not taking to consideration the observations and directions issued by the 3rd respondent in its order dated 05.12.2015 and the impugned assessment orders are in violation of the direction issued by the 3rd respondent. Learned counsel for the petitioner submits that the petitioner was not given proper opportunity of hearing before passing impugned orders and therefore, the petitioner approached this Court invoking the writ jurisdiction under Article 226 of the Constitution of India against the impugned assessment orders.

5. Ms. Jasmin M.M, learned Government Pleader submits that Section 15 of the Kerala Building Tax Act is in respect of rectification application. Section 15 provides that rectification application can be filed within 3 years from the date of issuance of the assessment order and after 3 WPC No.39541 of 2022 5 years, such an application would not be maintainable. Section 15 does not provide any limitation for passing the assessment order after issuance of the notice. In the present case, the matter was remanded back by the Appellate Authority vide order dated 05.12.2015 and thereafter, the assessing authority has passed impugned assessment orders which cannot be said to be barred by limitation as contended by the learned counsel for the petitioner. Learned Government Pleader further submits that the assessing authority has taken into consideration the observation and direction issued by the Appellate Authority vide order dated 05.12.2015. She further submits that despite notices issued to the petitioner for producing the relevant records, the petitioner has not produced any record before the assessing authority except the list of the apartment owners. When the petitioner himself has not cooperated in the assessment proceedings on remand, it cannot complaint above that not been given any opportunity and there is no force in the said submission of the learned counsel for the petitioner. WPC No.39541 of 2022 6

6. I have considered the submissions. Section 15 of the Kerala Building Tax Act, 1975 reads as under:

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: 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. (2) Where any such rectification has the effect of reducing the assessment, the assessing authority shall make any refund which may be due to such assessee. (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.

7. From the way of reading of Section 15, it is evident that Section 15 provides limitation of 3 years for filing the rectification application by an assessee and it does not laid down limitation for passing the assessment order after the notice is issued to an assessee under the provisions of the Kerala Building Tax Act. The assessment order would disclose that the WPC No.39541 of 2022 7 petitioner was issued notices to produce relevant record but except for a list of apartment owners, the petitioner did not produced any other documents before the assessing authority. If the petitioner is aggrieved that the assessment orders had not been passed as per the direction given by the Appellate Authority, the petitioner can raise this objection before the Appellate Authority. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not like to entertain writ petition on this ground.

8. According to the petitioner, the petitioner has already deposited the statutory amount while filing the appeal against the assessment order in Ext.P1. As per the receipt in Ext.P1(c) and if the petitioner relegated to the Appellate Authority, the amount deposited by him through Ext.P1(c) should be set off and the petitioner should be allowed to make deposit after adjusting the said amount in Ext.P1(c). Considering the said submission, the present writ petition is disposed of, with liberty to the petitioner to WPC No.39541 of 2022 8 approach the Appellate Authority under Section 11 of the Kerala Building Tax Act against the assessment order within a period of 15 days and remit the statutory pre-deposit after adjusting/setting off the deposit already made in Ext.P1(c). If the petitioner files the appeal(s) within a period of 15 days from today, the Appellate Authority should decide the appeal(s) on merit without going into the question of limitation. The petitioner is free to place all the submissions before the Appellate Authority. Sd/- DINESH KUMAR SINGH JUDGE AP WPC No.39541 of 2022 9 APPENDIX OF WP(C) 39541/2022 PETITIONER EXHIBITS Exhibit P1 Exhibit p1(a) Exhibit P1(b) Exhibit P1(c) Exhibit P2 ExhibitP2(a) Exhibit P3 Exhibit p3(a) Exhibit P4 Exhibit P4(a) Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P7(a) Exhibit1 P7(b) Exhibit P7(c) RETURN DATED 28.06.2014 WAS FILED BEFORE 1ST RESPONDENT BY PETITIONER. LETTER DATED 08.08.2014 WAS FILED BEFORE 1ST RESPONDENT BY PETITIONER. TRUE COPY OF ORDER 08.08.2014 WAS PASSED BY 1ST RESPONDENT. TRUE COPY OF CHALAN DATED 27.09.2014 WAS ISSUED FORREMITTANCE OF TAX BY PETITIONER. TRUE COPY OF ORDER DATED 05.12.2015 WAS PASSED BY 3RD RESPONDENT TRUE COPY OF STATEMENT DATED 29.12.2014 WAS FILED BEFORE 3RD ESPONDENT BY PETITIONER TRUE COPY OF NOTICE DATED 15.06.2022 WAS ISSUED BY 1ST RESPONDENT TO PETITIONER. TRUE COPY OF REPLY DATED 24.06.2022 WAS FILED BEFORE 1ST RESPONDENT BY PETITIONER. TRUE COPY OF NOTICE DATED 24.06.2022 WAS ISSUED BY 1ST RESPONDENT TO PETITIONER. TRUE COPY OF REPLY DATED 31.08.2022 WAS FILED BEFORE 1ST RESPONDENT BY PETITIONER. TRUE COPY OF REPLY DATED 07.10.2022 WAS FILED BEFORE 1ST RESPONDENT BY PETITIONER. TRUE COPY OF LETTER DATED 18.10.2022 WAS ISSUED BY 1ST RESPONDENT TO PETITIONER. TRUE COPY OF ORDER DATED 03.10.2022 WAS PASSED BY 1ST RESPONDENT IMPOSING BUILDING TAX. TRUE COPY OF DEMAND NOTICE DATED 03.10.2022 WAS ISSUED BY 1ST RESPONDENT FOR BUILDING TAX TRUE COY OF ORDER DATED 03.10.2022 WAS PASSED BY 1ST RESPONDENT IMPOSING LUCURY TAX TRUE COPY OF ORDER DATED 03.10.2022 WAS PASSED BY 1ST RESPONDENT IMPOSING HOUSING PROJECT CESS