Kumaran v. Tahsildar — 1994 DIGILAW 195 (KER)

Judgment :- This writ petition concerns an assessment to tax under the Kerala Building Tax Act, 1975 (for short the act ). Shorn of unnecessary details, the facts are as follows: 2. The petitioner, which is a firm, is the owner of the building which forms the subject matter of the assessment, and the construction of which was completed in 1986, stated to be at a cost of Rs. 325826/-. The local authority, namely the Mannarghat Panchayat fixed the annual value of the building at Rs. 51921/- (vide Ext. P1). On this basis the capital value of the building for purposes of assessment under the Act would be Rs. 519210/-. but the first respondent, the assessing authority under the Act, assessed the building on a capital value of Rs. 636900/- with a liability for tax of Rs. 37440/-. A copy of the order of assessment is Ext. P4, but it does not comply with the requirements of R.8(3) of the Rules framed under the Act in that it does not at all specify the basis of the assessment. It contains only the figures and no more, without any details or the materials on which the assessment is based, or as to how the capital value is arrived at. 3. The petitioner challenged the assessment in appeal before the second respondent. After calling for and obtaining a report from the assessing authority, the appeal was disposed of by the order Ext. P7, enhancing the capital value to Rs. 696900/-. The Appellate Authority stated that the measure of the annual rent which the assessing authority had adopted for fixing the annual value was low and accordingly proceeded to fix the rental value at an amount higher than that adopted by the assessing authority. It was on this basis, that he modified the order of assessment Ext. P4 by enhancing the capital value to Rs. 696900/- with a tax liability of Rs. 38040/- which was rectified later as Rs. 43440/- by Ext P10. This order was affirmed in revision by the District Collector by his proceedings Ext. PI 1. The petitioner challenges Ext. P4, P7 and PI 1 in this writ petition. 4. The order of assessment Ext. P4 is vitiated for the reasons which I have set out in extenso in my decision in Parur Tourist Home v. State of Kerala 1993(1) K.L.T 932. I am not therefore repeating the same. PI 1. The petitioner challenges Ext. P4, P7 and PI 1 in this writ petition. 4. The order of assessment Ext. P4 is vitiated for the reasons which I have set out in extenso in my decision in Parur Tourist Home v. State of Kerala 1993(1) K.L.T 932. I am not therefore repeating the same. The order Ext. P4 and the appellate and revisional orders arising therefrom have to be quashed and the matter remitted back to the assessing authority for making a fresh assessment according to law. And here arises the crux of the conflict between the parties. 5. Sri. Ravindran Achan appearing for the petitioner contends that the assessment after remit has to be made in the light of the amendments to the Act by Act 13 of 1993, on the plinth area basis and that there may be a direction accordingly. But the learned Government Pleader opposes the prayer with the submission that though a reconsideration consequent on a remit by any of the statutory appellate or revisional functionaries will entail this consequence, the position is different when the assessment stands set aside by an order of this court in exercise of the jurisdiction under Art.226 of the Constitution in which case the de novo consideration has to be based on the law as it stood at the time of original order of assessment, ie. the capital value basis. He places reliance on the decisions in Laxman Narotrao Navakhare v. Keshavrao Eknathsa Tapar, A.I.R 1993 SC 2596, Cyan Chand v. Kunjbeharilal A.I.R 1977 SC 858, Mukunda Bore v. Bangshidahar Buragohain A.I.R 1980 SC 1254, Gopinath Goel v. 1st Additional District Judge, A.I.R 1977 All. 408, and Arumukhan Pillai. v. Chandrasekharan Pillai, 1967 KLT 764. 6. Before I proceed to deal with the matter, I must mention how the question arises. S.5 of the Act which is the charging section, as originally enacted had laid the levy of the capital value of the building. The tax payable had to be reckoned with reference to the capital value as defined in S.2(f) read with the Schedule to the Act. S.5 as well as the Schedule underwent an amendment by the Kerala Building Tax (Amendment) Act 3 of 1992 which came into force on February 10,1992. A new method of assessment was introduced thereby. The tax payable had to be reckoned with reference to the capital value as defined in S.2(f) read with the Schedule to the Act. S.5 as well as the Schedule underwent an amendment by the Kerala Building Tax (Amendment) Act 3 of 1992 which came into force on February 10,1992. A new method of assessment was introduced thereby. S.5 was substituted by a new one, sub-section (1) of which provided for a charge to tax based on the plinth area (as defined in S.2(k)), at the rate specified in the Schedule, on every building the construction of which is completed on or after the appointed day, namely February 10,1992. Sub-section (2) gave a limited retrospectivity .to this amendment by providing that in the case of a building the construction of which had been completed before that date, and in respect of which the proceedings for assessment had not been initiated or completed before that date, the assessee may opt to be governed by the newly substituted sub-section (1), and be assessed on the plinth area basis, by making an application for the purpose within the period specified. Sub-section (2) underwent further change by the Kerala Finance Act 13 of 1993 liberalising the provision for plinth area assessment in respect of buildings, the construction of which had been completed before February 10,1992 by doing away with the necessity for exercising option, and making the plinth area basis of assessment applicable to all such old buildings, in respect of which the assessment had not been initiated or completed, or against which appeal or revision has been filed; Since it is this provision that is relied on by Sri. Ravindran Achan, it bears reproduction: "In the case of any building, the construction of which is completed prior to the appointed day, but the assessment of which has not been initiated or completed or against which appeal or revision has been filed, building tax shall be assessed on the basis of the plinth area at the rate specified in the Schedule". The intendment of the two amendments and the retrospectivity given thereby was evidently to make the plinth area basis of assessment applicable to all cases where the assessments had not become final at the time the amendments were made taking care at the same time not to reopen matters which had become concluded. The intendment of the two amendments and the retrospectivity given thereby was evidently to make the plinth area basis of assessment applicable to all cases where the assessments had not become final at the time the amendments were made taking care at the same time not to reopen matters which had become concluded. It is the benefit of these amendments and assessment on plinth area basis that is claimed by the petitioner when the matter goes back after quashing Exts. P4, P7 and P11. 7. What the court does in granting a writ of certiorari is to demolish the order which it considers to be without jurisdiction or palpably erroneous or made in violation of the principles of natural justice, but it does not substitute its own order for that of the authority concerned. (Ramesh v. Gendalal, A.I.R 1966 SC 1445). In fact, this marks the essential difference between proceedings under Arts.226 and 227, in the latter of which the court can substitute its own order in the place of that of the Tribunal. Therefore the effect of quashing the orders Exts. P4, P7 and P 11 is to relegate the parties to the position which they occupied before the passing of the order of assessment Ext. P4 obligating the assessing authority to pass a fresh order of assessment in accordance with law. That law is the law which he has to administer as on the date of passing of the fresh order of assessment, i.e. S.5 as it stands amended. Since the assessment stands quashed it is as if the assessment has not been completed and necessarily the assessing authority has to apply the plinth area basis, there being no right accruing to the respondents that by the making of the order of assessment Ext. P.4, the law as on the date of its making crystallises as to make it applicable for any fresh assessment that may be made in its place. 8. The intendment of the successive amendments lends support to this view of mine. The purpose was to simplify the mode of assessment and to confer a benefit on assessees, except those whose assessments had become final. The amendments did not evidently touch concluded matters to avoid administrative inconvenience, as also refunds which may be entailed by the plinth area basis of assessment. The purpose was to simplify the mode of assessment and to confer a benefit on assessees, except those whose assessments had become final. The amendments did not evidently touch concluded matters to avoid administrative inconvenience, as also refunds which may be entailed by the plinth area basis of assessment. If this be the object of the amendments, I do not find any reason why a distinction should be drawn as done by the learned Government Pleader between those cases which get remitted by the order of a statutory functionary and those which get remitted for de novo consideration by order of this court. In either case, there was no finality attaching to the assessment, either because it was pending before a statutory authority or because it was pending in this court under a Constitutional remedy. 9. The decisions cited by the learned Government Pleader do not touch the question of what should be done on a remit as in this case, when the law has undergone a retrospective change in the meanwhile. In Mukunda Bore the Supreme Court stated that a High Court does not act as a court of appeal in the exercise of its special jurisdiction under Art.226. In Arumukhan Pillai, a learned Single Judge of this court refused to interfere with the order of the District Judge in revision in a Rent Control matter, though the basis of the District Judge's decision had been knocked off by a subsequent notification of the Government. The learned judge held that since the order of the District Judge was right and in accordance with the law prevailing on that date, this court will not interfere with it in a proceeding under Art.226. In Gopinath Goel, the Allahabad High Court held that the amendment of a law with retrospective effect was not a round for invoking the certiorari jurisdiction under Art.226. In the other two cases of Cyan Chand and Laxman Marotrao Navakhare, the question in effect was whether the amendment to a statute which was made applicable to pending appeals and revisions could be applied to an appeal under Art.136 of the Constitution. The Supreme Court answered the question in the negative. 10. In the other two cases of Cyan Chand and Laxman Marotrao Navakhare, the question in effect was whether the amendment to a statute which was made applicable to pending appeals and revisions could be applied to an appeal under Art.136 of the Constitution. The Supreme Court answered the question in the negative. 10. None of these cases was concerned with the precise question as to what is the law to be applied, if the matter were remitted back to the statutory authority by an order of this court passed in exercise of the jurisdiction under Art.26. I do note an incongruity that the law applicable may be one if this court deals with the matter on the merits, but another if the matter is remitted back. But that is referable to the nature of the jurisdiction exercised by this court under Art.226. I do not find any logic or principle of law under which the assessing authority could be directed to appeal the erstwhile law, and make an assessment on the capital value basis, when the statute is specific that any assessment in praesenti could only be on the plinth area basis. Nor do I find any right inhering in the respondent, to peg the law for an assessment to a particular date despite subsequent retrospective amendments. 11. I am therefore of the opinion that the fresh assessment in this case should be under S.5(2) of the Act as amended on the plinth area basis. I had taken the same view earlier in Mathew v. Tahsildar,1994(1) KLT 695, though without much of a discussion. I allow the original petition. I quash Exts. P4, P7 and P11 and direct the first respondent to complete the assessment afresh in accordance with law and in the light of the observations contained in this judgment. No costs.