Kurian George v. Tahsildar — 1995 DIGILAW 280 (KER)

Judgment :- Patnaik, J. Both the appeals and the Original Petitions were heard together as a common question of law arises for consideration. Petitioners in O.P.No. 10901 of 1990 are the appellants in W.A.No.1320 of 1993 and the respondent in the O.P. is the appellant in W.A.No.44 of 1994. A learned single judge of this Court referred O.P. Nos. 1106 and 1541 of 1989 to a Division Bench with an observation that similar questions raised therein have been answered differently by this Court in different cases and those decisions require reconsideration. 2. The facts of the case in O.P.No. 10901 of 1990 are as follows: The Petitioners are the owners of a 4 storied building having a plinth area of 303 Sq. meter each bearing Sy. No. 18/1-2 of Muttambalam Village within the limits of Kottayam Municipality. The construction was completed in October, 1985. The petitioners filed a return under section 7 of the Kerala Building Tax Act, 1975. On a consideration of the return, the Tahsildar, Kottayam (Assessing authority) determined the capital value of the building as Rs. 1068320/-. An amount of Rs. 80,582/- was assessed as tax in Ext. P2 order dated 27.11.1989. The petitioners were directed to remit the amount in four quarterly-instalments. But, before the last instalment of tax was paid they were served with Ext. P3 notice dated 1-8-1990 under section 15 of the Kerala Building Tax Act thereinafter referred to as "act" ). It was indicated in Ext. P3 that the original assessment fixing the capital value of the building and tax is erroneous and the assessment so made is proposed to be rectified by fixing the capital value as Rs. 26,29,080/- and tax as Rs. 2,36,658/-. The petitioners were therefore called upon to pay a further sum of Rs. 1,56,076/- as the balance tax after deducting the amount already paid. In Ext. P3 notice, the petitioners were asked to file objection, if any, against the proposed assessment. In pursuance thereof, they have filed Ext. P4 representation before the respondent challenging the jurisdiction of the Tahsildar to exercise his power under section 15 of the Act for rectification of the so called mistake. Thereafter, the Tahsildar issued Ext. P5 notice calling upon the petitioners to pay the balance amount. The petitioners, therefore, filed this Original Petition challenging ligality of Exts. P3 and P5, and pray that the same may be quashed. Thereafter, the Tahsildar issued Ext. P5 notice calling upon the petitioners to pay the balance amount. The petitioners, therefore, filed this Original Petition challenging ligality of Exts. P3 and P5, and pray that the same may be quashed. In the counter-affidavit filed by the respondent, it is stated that after the issue of Ext. P2 order and demand notice, the auditors noticed that while finalising the assessment of building tax the assessing authority has totally omitted to take note of the report of the Revenue Inspector containing his recommendation to fix the captial value on the basis of estimated gross annual rent of the building as a hotel and lodge. The assessing authority, therefore ,found that the assessment in question was vitiated by an error apparent on the record in as much as the assessment was finalised by overlooking an important report of the Revenue Inspector suggesting a different method for assessing annual value and capital value different from the one adopted by the assessing authority in this case. On a further scrutiny of the assessment file, the assessing authority found that: the assessment order already issued being vitiated by an error apparent from the record required rectification under section 15 Of the Act. In the course of the rectification proceedings, a local inspection with notice to the petitioners was also held by the assessing authority before finalising the assessment as proposed in Exts. P3 and P5. 3. It may be noted here that a hotel is being ran in the building in the name and style M/s. Nisha Continental. In Ext. P1 return, the date of occupation of the building was shown as 4-11-1985 and the monthly rent thereof was shown as Rs. 8,000/-. The capital value of the building was shown as Rs. 9,60,000/- But, the local authority fixed annual value at Rs. 1,06,832/-. On receipt of Ext. P1 return, details were got verified through the Revenue Inspector, who after conducting an enquiry submitted his report dated 19.4.1989. It was pointed out that the building had been let out to a firm in which the only partners are the two petitioners and their minor children. 12 rooms in the buildings are being are being used as lodge. The monthly rent as shown by the petitioners is wrong. On the basis of an estimation made by the Revenue Inspector the building tax would come to Rs. 12 rooms in the buildings are being are being used as lodge. The monthly rent as shown by the petitioners is wrong. On the basis of an estimation made by the Revenue Inspector the building tax would come to Rs. 2,36,658/- and the capital value of the binding would come to Rs. 26,29,080/- Inspite of such a report the assessing authority issued Exts. P2 and P2(a) demand notice claiming tax of Rs. 80,582/- by fixing the capital value at Rs. 10,68,320/-. 4. The learned single judge pointed out that the crucical question arising for consideration is whether the initiation of rectification proceedings under section 15 of the Act by issuing Ext.P3 notice was justifiable on the facts and in the circumstances of the case. He observed that the basic legal requirement for exercising the power of rectification under section 15(1) of the Act is the existence of a 'mistake apparent form the record' in the earlier orders of assessment. He further observed that it is now well settled that the concept of a 'mistake' apparent from the record' is not confined to clerical or arithmetical mistakes but also comprehends errors which after a judicious probe into the record form which it emanates are discerned. In support of this proposition, he relied on the decisions reported in T.S. Rajam v. Controller of Estate Duty (1968) 69 ITR 342 (Madras); National Rayon Corpn. v. G.R. Bahmani, I.T.O. (1965) 56 I.T.R.114 (Bombay); Ved Prakash Modem Lai v. C.I.T. (1976) 102 ITR 213 (Punjab); Marsepalli Oil Mills v. The State of Mysore (1973) 32 STC 599 - S.C. ); KilKotagiri T&C Estates Co. Ltd. v. Income Tax Appellate. Tribunal (1988 (2) KLT 271) and KM. Shanmugam v. S.R. V.S.(P) Ltd. (AIR 1963 SC 1626). It has also been pointed out that the Supreme Court has held that the mistake liable to be rectified must be one "apparent from the record". The concept of "error apparent on the face of record" in the ultimate analysis is comprised of many imponderables and is not capable of precise definition, as no objective criterion can be laid down, the apparent naturn of the error to a large extent being dependent upon the subjective element. The mistake apparent must be a mistake to point out which no elaborate argument is required and must be a glaring obvious and self evident one. The mistake apparent must be a mistake to point out which no elaborate argument is required and must be a glaring obvious and self evident one. After referring to the decisions of this Court in Yousef v. State of Kerala (1993 (2) KLT 59); Rajamoni Ammo, v. Dy. Commissioner (1990 (2) KLT 585) and Parameswaran Bharathan v. Tahsildar (1990 (2) KLT 360) and on an analysis of Ss.2(5) and 2(a) as well as S.6 of the Act as it then stood, the learned Single Judge held that the failure of the assessing authority to take into consideration the report of the Revenue Inspector which was on the record, at the time of first assessment, is a mistake on the part of the Tahsildar, It was on detecting the mistake thus committed in finalising the assessment, Ext. P3 notice under S.15 of the Act was rightly issued. According to him that was an error apparent form the record. However, he further held that the Tahsildar has failed to consider Ext. P4 representation in its proper perspective and the petitioners were not given a fair and reasonable opportunity to substantiate their objections against the proposed action. Hence Ext. P5 notice of demand was quashed. The assessing authority was directed to restore the proceedings to file and dispose of the same in accordance with law after giving the assessees a further opportunity to adduce evidence and establish their objections to the new basis proposed to be adopted as the basis for finalising the assessment. It was also made clear that he has not gone into the sustainability or otherwise of the assessment order issued after rectification on its merits. 5. Learned counsel for the petitioners (Appellants in W.A. No. 1320 of 1993) contended that the assessing authority while passing Ext. P2 assessment order took into account the relevant provisions of sections 6 of the Kerala Building Tax Act, as it stood then, by ignoring the report of the Revenue Inspector which was already there. He was empowered to do it. Every record found in the file if not adverted to by the assessing authority is not a reason to conclude that there is "error apparent from the records". The assessing authority made an attempt to reopen the assessment. A provision for reopening as assessment has to be specifically conferred as the finality which otherwise attaches to it stands affected by the reopening. The assessing authority made an attempt to reopen the assessment. A provision for reopening as assessment has to be specifically conferred as the finality which otherwise attaches to it stands affected by the reopening. Ordinarily the authority passing the order becomes functus officio once the assessment is completed unless the statute in question vests him with further power either to reopen it or to rectify any mistake in it. The assumption, that the petitioners and their minor children atone are partners of the firm which took the building on rent, is wrong inasmuch as there are 9 partners in the firm of which 4 are strangers. The actual rent paid by the firm was mentioned in the return and the annual capital value was rightly assessed on the basis thereof by the local authority. 6. The Tahsildar - Appellant in W.A.No. 44 of 1994 - has contended that having found that there was a rectifiable mistake, the learned single judge ought to have upheld the rectification order and Ext. P5 demand notice. There was no violation of the principles of natural justice in this case as before passing the rectification order and issuing Ext. P5 demand notice the petitioners were given a notice dated 1.8.1990 (Ext. P3). The objection dated 8.8.1990 (Ext. P4) filed by them was duly considered before passing the rectification order. There was a time lapse of three months between Ext. P3 and Ext. P5 notice and therefore sufficient opportunity was given to the petitioners before passing the rectification order. It is a fundamental principle in administrative law that an order passed on mistake, misrepresentation or fraud could be set right when such a mistake or misrepresentation or fraud is brought to the notice. The principle underlying S.15 of the Act recognises this position of administrative law. 7. In O.P.Nos.1106 and 1541 of 1989, the petitioners challenge the notice issued to them under S.15 of the Act for revising the assessment of building tax. The petitioners and others are the owners of 94.875 cents of land in Survey Nos. 455/3 and 1825/2 of Ernakulam Village. They purchased the property under separate documents. Subsequently they formed a partnership under the name and style of "M/s. Issac Peter and Company" and applied to the Corporation of Cochin for putting up a theatre complex building in the said land. 455/3 and 1825/2 of Ernakulam Village. They purchased the property under separate documents. Subsequently they formed a partnership under the name and style of "M/s. Issac Peter and Company" and applied to the Corporation of Cochin for putting up a theatre complex building in the said land. After completion of the construction, the Corporation of Cochin assigned three numbers to the buildings. The buildings are used as cinema theaters called Saritha, Savitha and Sangeeta. After considering the return filed by the petitioners under S.7 of the Act, the Tahsildar passed assessment order under S.9 of the Act determining the tax payable by each of the owners of the buildings. As per the order, each of the petitioners was directed to pay a sum of Rs. 12.300/- by way of building tax. The petitioners paid the amount. Six months thereafter, the Dist. Collector initiated suo motu revision proceedings under section 13 of the Act. The suo mote revision proceedings was withdrawn on the ground that it was barred by limitation inasmuch the buildings in question were assessed on 27-3-1987 and the notice for suo mote revision was issued on 7-10-1987. The Collector has no jurisdication to initiate suo mote proceedings under section 13 of the Act after a lapse of a period of three months from the date of assessment of tax. But, however, it was observed by the Collector in Ext. P3 order that mistake, if any, can be rectified by the assessing authority under S.15 of the Act. Accordingly, Ext. P4 notice dated 16-8-1988 was issued under S.15 of the Act stating therein that it has since been noticed that the assessment of building tax as per the assessment order dated 27-3-1987 was erroneous and was seen made without considering the fact that the building is to be treated as single unit, and the assessment of tax already ordered has to be revised by invoking the provisions contained in S.15 of the Act. The petitioners were called upon to file their objections if any. The petitioners filed their objections against the proposed revision of tax. It is contended by the petitioners that the assessing authority cannot rectify an errorneous assessment nor can he reopen the assessment order under S.15 of the Act. The mistake must be apparent from the record, such as clerical or arithmetical mistake. It must be an obvious and patent mistake. The petitioners filed their objections against the proposed revision of tax. It is contended by the petitioners that the assessing authority cannot rectify an errorneous assessment nor can he reopen the assessment order under S.15 of the Act. The mistake must be apparent from the record, such as clerical or arithmetical mistake. It must be an obvious and patent mistake. Originally, the assessing authority made the assessments seperately taking into account the circumstances that there is separate ownership for different owners and the buildings were put up by different owners with their money. The assessing authority placed reliance on Explanation (2) to S.2 of the Act. The view of the assessing authority now is that Explanation (2) will not apply to the facts of this case. This is a case of change of opinion not warranting the invocation of S.15 of the Act. The taxing authorities cannot in the guise of mistake in the assessment order revise or review their order generally or reconsider their conclusion on the facts of the case. Notice (Ext. P3) is therefore totally without jurisdiction and so also the order passed on the said notice (Ext. P6). In the counter affidavit filed by the respondent, it is stated that while completing the original assessment the assessing authority happened to commit a mistake to the effect that for fixing the capital value he had considered only the cost of construction of the building. Under S.6(4) of the Act, as it stood then, the annual value has to be fixed after talcing into consideration the factors mentioned therein, namely the location of the building, the nature and quality of the structure of the building, capability of the building for profitable use, amenities provided in the building, access to the building from the public roads or water ways, the value of the land on which the building was constructed and the estimated cost of the building. Thus cost of construction is only one of the factors to be considered while determining the annual value under section 6(2) by the assessing authority. Moreover, the building is owned by a single legal person namely Issac Peter and Company and not by different persons. The petitioners are only partners of that legal entity. They have no individual ownership of the building. Moreover, the building is owned by a single legal person namely Issac Peter and Company and not by different persons. The petitioners are only partners of that legal entity. They have no individual ownership of the building. The enquiry conducted by the assessing authority also revealed that the local authority assessed the building giving three door numbers and not individually on the partners as separate 7 owners. Since the building is owned by a single person and not by different persons Explanation 2 of Sec.2(e) of the Act is not applicable. The building ought to have been assessed as a single unit pursuant to Ext. R1 return filed by the managing partner of the firm. The original assessment was completed by the assessing authority under a mistake. The mistakes pointed out are mistakes apparent from the records. In the course of the administrative routine inspection of the building tax assessments of the assessing authority by the District Collector, the aforesaid mistakes were noticed. Though a proceedings under S.13 of the Act was withdrawn, the assessing authority on his own motion initiated proceedings under S.15 of the Act to rectify the mistakes mentioned above which are apparent from the records. Hence the notice and subsequent order (Ext. P6) revising the earlier assessment order are valid. 8. It is pertinent to note at the outset the broad scheme and the relevant provisions of the Kerala Building Tax Act, 1975. S.2 defines various expressions. Clause (a) defines "annual value". It is as follows: "(a) "annual value" of the building means the gross annual rent at which the building may at the time of completion be expected to let from month to month or from year to year." Clause (f) defines "capital value", which is as follows: "(f) "capital value" of a building means the value arrived at the multiplying the annual value of a building by ten." Clause (e) together with the explanation there under read as follows: "(e) "building" means a house, out-house, garage, or any other structure, or part thereof, whether of masonry, bricks, wood, metal or other material but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine. which is not attached to the main structure. which is not attached to the main structure. Explanation 1: In the case of building constructed for providing housing accommodation for workers and their families residing in plantations, in pursuance of S.15 of the Plantations Labour Act, 1951 (Central Act 69 of 1951) or building constructed under the Government of India Subsidised Housing Scheme for industrial workers, each part of a building providing or intended to* provide accommodation for a worker and his family shall be deemed to be a separate building. - Explanation 2: Where a building consists of different apartments or flats owned by different persons and the cost of construction of the building was met by all such persons jointly, each such apartment or flat shall be deemed to be a separate building." S.3 deals with exemption of certain buildings from levy of tax. S.4 lays down that the Government may, by notification in the Gazette, appoint such officers as they think fit to be assessing authorities and appellate authorities. S.5 is the charging section which provides that building tax shall be charged at the rate specified in the Schedule in respect of every building the construction of which is completed on or after the 1st day of April, 1973, and the capital value of which exceeds rupees seventy five thousand. S.6, as it stood prior to its amendment by Act 3/92, reads as follows: "6. Determination of capital value - (1) For determining the capital value for the purposes of this Act, the annual value of the building shall be the annual value fixed for that building in the assessment books of the local authority within whose area the building is situate. (2) Notwithstanding anything contained in sub-section (1), if the assessing authority is of opinion that the annual value fixed for a building in the assessment books of the local authority is too low, it may, after giving the person or persons affected thereby an opportunity on being heard, fix the annual value of the building. (2) Notwithstanding anything contained in sub-section (1), if the assessing authority is of opinion that the annual value fixed for a building in the assessment books of the local authority is too low, it may, after giving the person or persons affected thereby an opportunity on being heard, fix the annual value of the building. (3) Where the local authority has not fixed the annual value of a building in any case falling under sub-section (2) or sub-section (3) or sub-section (4) of S.5 within a period of six months after the completion of the repair or improvement of the construction or addition or combination, as the case may be, the assessing authority may, after giving the person or persons affected thereby an opportunity of being heard and after informing the local authority being heard and after informing the local authority concerned, assess the annual value of the building. (4) In determining the annual value under sub-section (2) or sub-section (3), the assessing authority shall have regard to the following factors, namely: (a) the location of the building; (b) the nature and quality of the structure of the building; (c) the capability of the building for profitable use; (d) amenities provided in the building; (e) access to the building from public roads or water ways; (f) the value of the land on which the building is constructed; (g) the estimated cost of construction of the building; (h) such other factors as may be prescribed." Ss.7 and 8 contain the provisions regarding the filing of return by the owners of the buildings. Ss.9 and 10 prescribe the procedure for assessment. S.11 provides the forum of appeal against the order of assessment. S.12 provides that if the appellate authority thinks that the appeal involves a question of law he may refer it to the District Court. S.13 lays down the power of revision of the District Collector. Under this section, the Dist. Collector can either suo mote or on application by any person aggrieved, call for and examine the record of any order passed by the appellate authority. No such order shall be passed without notice to the party. The District Collector shall not suo motu revise an order if that order has been passed more than three months previously. S.14 lays down the power of revision by the Government. No such order shall be passed without notice to the party. The District Collector shall not suo motu revise an order if that order has been passed more than three months previously. S.14 lays down the power of revision by the Government. The Government may, on application by any person aggrieved, call for and examine the record of any order passed by the District Collector suo mote under S.13, for the purpose of satisfying themselves as to the propriety or regularity of such order and pass, such order in reference thereto as they think fit. But the Government shall not revise any order under this section after the expiry of sixty days from the date on which that order was communicated to the applicant and no such order shall be passed without giving an opportunity of being heard to the party. Section 15 deals with rectification of mistake. It is as follows: "Rectification of mistake - (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 or 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: 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) Whether any such rectification _has the effect or reducing the assessment, the assessing authority shall make any refund which may be due to such assessee. (2) Whether any such rectification _has the effect or 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 are fund, 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." Section 16, as it stood then, lays down that there the annual value of a building fixed by a local authority is enhanced or reduced, the building tax levied under this Act shall be revised by the assessing authority in conformity with such enhancement or reduction. The proviso thereof states that an assessment under sub-section (2) or sub-section (3) of S.6 shall not be revised under this sub-section. Ss.17,18 and 19 lay down the power of the assessing authority and the appellate authority to take evidence on oath and the mode and time or recovery of the building tax. S.20 deals with refund of excess tax, if any, paid. Ss.21, 22 and 24 lay down the offence and penalty for making false statements in declaration and failure to furnish return and for instituting prosecutions. S.23 empowers the assessing authority to inspect any building for the purpose of collecting particulars. S.25'lays down the manner of service of notice. S.26 empowers the State Government to make rules for carrying out the purposes of the Act. S.27 bars the jurisdiction of the civil court to set aside or modify any assessment made under this Act or to file suit or other proceeding against the Government or any authority for anything done in good faith under this Act. S.28 lays down the method of computation of period of limitation. S.29 lays down that the building tax shall not be taken into account in fixing fair rent under S.5 of the Kerala Buildings (Lease and Rent Control) Act, 1965. S.30 deals with the power of the Government to remove any difficulty by passing an order which is not. inconsistent with the provisions of this Act. S.31 deals with repeal of the Kerala Building Tax Ordinance, 1974 and saving of action taken or deemed to have been taken under the said Ordinance. 9. S.30 deals with the power of the Government to remove any difficulty by passing an order which is not. inconsistent with the provisions of this Act. S.31 deals with repeal of the Kerala Building Tax Ordinance, 1974 and saving of action taken or deemed to have been taken under the said Ordinance. 9. Section 2(e) and Explanation 2 there under came up for consideration before this Court in Balan v. State of Kerala (1990 (1) K.L.T. 428) and Bhattathiripad v, Tahsildar (1994 (1) K.L.T. 790). In Balan's case, it was held that "Explanation 2 says that where a building consists of different apartments or flats owned by different persons and the cost of construction of such building was met by such persons jointly, each such apartment or flat, by a fiction, has been treated as a separate building. It is thus clear but for this fiction introduced by this Explanation a building which consists of different apartments or flats owned by different persons, as they admittedly have met the cost of construction jointly, also would have been treated as a single unit for the purpose of levying the building tax. In other words this Explanation suggests that no other building the cost of construction of which is met jointly by several persons, can be treated as separate units for the purpose of levying the building tax. That is the intention of the legislature is clear from this Explanation. If that be the position the building in dispute which was constructed for the purpose of using it as a theatre necessarily has to be treated as one unit for the purpose of levying the tax even assuming the cost of construction of the building is met jointly by the petitioners." 10. In Bhattathiripad's case (1994 (1) KLT 790), it was found that the entire building is one in the sense that it is a continuous one with common walls separating the portions of two adjoining owners. But otherwise, each of the nineteen persons is the owner of the shop rooms standing on the share of the property allotted to him. On these facts it was held that, "even without resort to Explanation 2 to S.1(e) of the Act, portions of the building belonging to each are liable to be assessed only separately and not as one single consolidated building. On these facts it was held that, "even without resort to Explanation 2 to S.1(e) of the Act, portions of the building belonging to each are liable to be assessed only separately and not as one single consolidated building. Building is defined in S.2(e) as including apart thereof and therefore the total structure comprising of sixty seven shop rooms, though structurally one, constitutes different buildings in the hands of the respective owners, for the purposes of the Act. This is not a case where the structure is put up on co-ownership property, with each one of the co-owners claiming a portion of the building as his, though the land on which that portion stands is held in co-ownership. This is a case where each of the owners is the owner of the building as well as the land on which it stands, so that his title to the building is absolute and complete. He is the exclusive owner thereof. None of the owners of portions of the structure has any right over the portions of the building held by the others." 11. On a reading of the aforesaid two decisions, it appears to us that the import of Explanation 2 to S.2(e) of the Act is as follows: When a building is constructed, consisting of separate and distinct apartments or flats, jointly by a group of persons, each flat or apartment shall be treated as separate building, if each one of the co-owners claims a portion of the building as his and each of the co-owner's is the owner of that portion of the building having absolute title to it. Further a flat or apartment should be owned by one of the co-owners to the exclusion of others. In other words, none of the owners of portions of the structure should have any right over the whole building except the portion which is owned and possessed by him. It is more so when the partition of the land has been clearly effected and the building was being put up, as one structure, though belonging to different owners in defined portion. In Balan's case (1990 (1) KLT 428), the building in question was a cinema theatre having no separate or distinct apartments or flats. It is more so when the partition of the land has been clearly effected and the building was being put up, as one structure, though belonging to different owners in defined portion. In Balan's case (1990 (1) KLT 428), the building in question was a cinema theatre having no separate or distinct apartments or flats. It was a single building constructed jointly by a group of persons each of whom as a co-owner could lay his claim on any portion of the building. This is the distinguishing feature in Balan's case. 12. Local authority has been defined in S.2(g) of the Act. It lays down as follows: "Local authority means a municipal corporation or a municipal council or a township committee or a panchayat or a cantonment board." Section 6, as it then stood, contemplates the norms or basis on which capital value of a building shall be determined. Sub-section (1) of S.6 lays down that the annual value of a building shall be the annual value fixed for that building in the assessment books of the local authority. Sub-section (2) lays down that if the assessing authority is of opinion that the annual value fixed for a building by the local authority is too low, it may fix the annual value of the building after giving the person or persons affected thereby an opportunity of being heard. Sub-section (3) thereof lays down that if the annual value of the building has not been determined by the local authority, the assessing authority may assess the annual value of the building after giving the persons affected an opportunity of being heard and after informing the local authority concerned. In determining the annual value under this provision, certain factors are to be taken into consideration. It would appear, on a reading of S.6, that three alternative methods for determining the capital value of the building have been contemplated. Normally, the annual value of a building shall be the annual value fixed by the local authority under sub-section (1) of S.6. What sub-section (2) contemplates is that if the assessing authority is of opinion that the assessment of the local authority is too low, it may proceed to ascertain the annual value of the bull ding independently. So is the case if no annual value of the building has been fixed by the local authority. What sub-section (2) contemplates is that if the assessing authority is of opinion that the assessment of the local authority is too low, it may proceed to ascertain the annual value of the bull ding independently. So is the case if no annual value of the building has been fixed by the local authority. The basis of the assessment as contemplated in sub-sections (1) and (2) of S.6 are two distinct and alternative methods. The assessing authority is at liberty to adopt one of the basis for assessment of building tax Once he adopts one basis and makes the assessment final, he cannot later on turn round and say that the alternative method should have been adopted. That is because of the fact that once he makes the assessment and in pursuance thereof tax was collected he become functus officio and loses his jurisdiction over the matter. 13. The submission of the learned Government Pleader that the assessing authority, in exercise of his jurisdiction under S.15 of the Act, can rectify such a mistake can be held to be valid only if he exercises the jurisdiction within the limits and scope of S.15 of the Act. What is contemplated in S.15 is that the appellate authority or the revisional authority or the assessing authority may rectify any mistake apparent from the record when a mistake has been brought to its notice, within a period of three years from the date of assessment or confirmation of the assessment in appeal or revision. 14. In P. P. Yousef v. State of Kerala, 1993 (2) KLT59 =1993 KLJ (Tax Cases) 378), T.L. Viswanatha Iyer, J. by relying on some Supreme Court decisions has laid down as follows: "The Act nowhere provides for the reopening of an order and to substitute if with a fresh order on a different basis. There is no provision in the Act akin to S.147 of the Incometax Act, 1961 or S.19 of the Kerala General Sales Tax Act, 1963. Such a pro vision is significant by its absence in the Act. S.15 which is invoked in this case is analogous to S.154 of the Income Tax Act, 1961 and S.43 of the Kerala General Sales Tax Act, 1963. There is a distinct difference between the re-opening of an assessment and the rectification of any mistake in it, apparent from the record. S.15 which is invoked in this case is analogous to S.154 of the Income Tax Act, 1961 and S.43 of the Kerala General Sales Tax Act, 1963. There is a distinct difference between the re-opening of an assessment and the rectification of any mistake in it, apparent from the record. The consequence of re-opening an assessment is to set aside the original order of assessment, and to substitute it with another order of assessment, in accordance with law. In cases of rectification of a mistake, the order which is vitiated by the mistake continues to subsist, and operate, but with the mistake in it rectified. A provision for re-opening an assessment has to be specifically conferred as the finality which, otherwise attaches to it stands affected by the reopening. Ordinarily, the authority passing the order becomes functus officio once the assessment is completed, unless the statute in question vests him with further power either to reopen it, or to rectify any mistake in it. Either way, he has to function strictly within the parameters of that power. Therefore, and in the absence of any provision in the Act to reopen an assessment, the power which could be exercised by the statutory authorities is only to rectify any mistake apparent from the record and not to reopen an assessment changing the basis of it, or to substitute another assessment in its place. A mistake to be so rectified must be apparent from the records and not with reference to extraneous materials, and this is crucial in the exercise of the jurisdiction under S.15." This dictum has been followed by this Court in Appulli Gopalakrishnan v. Tahsildar (1995 KLJ (Tax Cases) 260. It appears from the scheme of the Act, as stated earlier, that the observation of Viswanatha Iyer, J. does not admit of any doubt. With respect, we affirm the aforesaid view. 15. The vital question that arises for consideration in all these cases is as to whether the assessing authority had the jurisdiction to issue notices in exercise of the powers under S.15 of the Act to revise the earlier assessment, treating it as a mistake apparent from the record. The Supreme Court and other High Courts as well as this High Court had the occasion to consider and interpret the analogous provision of S.154 of the Incometax Act) 1961 and S.35 of the Incometax Act, 1922. The Supreme Court and other High Courts as well as this High Court had the occasion to consider and interpret the analogous provision of S.154 of the Incometax Act) 1961 and S.35 of the Incometax Act, 1922. In Venkatachalam v. Bombay Dyeing and Manufacturing Co. lid. [(1958) 34 ITR 143], it has been laid down by the Supreme Court that a glaring and obvious mistake of law can be rectified under S.35 of the Incometax Act, 1922 as much as a mistake of fact apparent from the record, in the following circumstances: The Income Tax Officer assessed the respondent company to tax for the assessment year 1952-53 by his assessment order made on October 9,1952. Section 13 of the Indian Incometax (Amendment) Act, 195 3 was enacted on May 24,1953. The Amendment Act provided that "subject to any special provision made in this behalf in the Act, it shall be deemed to have come into force on the first day of April, 1952". In the original assessment, credit for certain sum was given as interest on tax paid in advance under S.18A(5) of the Incometax Act, when the assessment was made on October 9, 1952. But by the provisions of the Amendment Act, the assessee was entitled to lesser amount as interest. The Income Tax Officer thereafter exercised his power under S.35 of the Incometax Act and rectified the mistake in the order of assessment and demanded payment of excess amount allowed earlier. In this context, the Supreme Court held (hat the effect of the provision that S.13 of the Amendment Act shall be deemed to have come into force on April 1, 1952 was that the amendment to S.18 A must be deemed to have been included in the principal Act as from April 1,1952, for all purposes, and therefore the proviso must be deemed to be part of S. ISA on the date of the passing of the assessment order; consequently the assessment order was inconsistent with the proviso to S.18A and must be deemed to suffer from a mistake apparent from the record and the Income Tax Officer was therefore justified in exercising his power under S.35 and rectifying the mistake. Thus, this decision lays down that if operation of any enactment is given retrospective effect, though passed after the assessment order, the same should be deemed to have been in the statute book on the date of assessment and the assessing authority gets the jurisdiction to rectify the assessment order as if it suffers from a mistake apparent from the records. This is not the situation in the present case. 16. In Master Construction Co. v. State of Orissa (AIR 1966 SC 1047), the Commissioner of Sales Tax, Orissa in exercise of R.83 of the Orissa Sales Tax Rules, 1947 rectified a purported mistake on the ground that the points of limitation were not considered in the earlier order. The Supreme Court held as follows: - "An arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error "due to a careless mistake or omission unintentionally made. There is another qualification, namely, that such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on question of fact or law. The accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the judge's inadvertence or the advocate's mistake But however, wide the said expressions are construed, they cannot countenance a re-argument on merits on question of fact or law, or permit a party to raise new arguments which he lias not advanced at the first instance. The cause for such a slip or omission may be the judge's inadvertence or the advocate's mistake But however, wide the said expressions are construed, they cannot countenance a re-argument on merits on question of fact or law, or permit a party to raise new arguments which he lias not advanced at the first instance. Where the Commissioner reviewing his orders passed in appeal practically reheard the entire matter both on law and facts and also considered the points of limitation which were not taken, before him, in original appeal though they could have been taken and set aside his first orders. The wrong conclusion, if any, arrived at by the Commissioner in his earlier order, because of the fact that the said arguments on limitation were not advanced before him, could not be said to be errors apparent on the face of the record arising or accruing from an accidental slip or omission. The errors if any, arose because the Department did not raise those points before the Commissioner. They were also errors not apparent on the face of the record for the decision depended upon consideration of arguable questions of limitation and construction of documents. Indeed the Commissioner re-heard arguments and came to a conclusion different from that which he arrived on the earlier occasion." In T.S. Balaram v. Volkart Brothers, Bombay (AIR 1971 SC 2204), the Supreme Court held as follows: "The power of the officers mentioned in S. I54 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions." In Chunibhai v. Narayanarao (AIR 1965 SC 1457), it has been laid down that in the absence of any power of review no authority can subsequently reconsider his previous decision and hold that there were grounds for annulling or reversing the same. In Commissioner of Incometax v. Simon Carves Ltd. [(1976) 105 ITR 212], the Supreme Court considered the power of the Income Tax Officer to reopen the assessment to compute income by applying another method yielding larger amount, it was held as follows: "that discretion was vested in the Incometax officer under R.33 for the purpose of making his choice of the methods. There was nothing to show that the discretion was not exercised by him in a proper or judicious manner; nor was it suggested that the officer was. actuated by some oblique motive. From the mere fact that the method selected by him was such as resulted in lower tax liability of the assessee compared to the liability which would have resulted from the adoption of another method, it did not follow that the discretion was not exercised in a proper and judicious manner. The order made by the Income-tax Officer at the time of the original assessment was a legally correct order and was not vitiated by any error. The absence of an error justified the inference that this was not a case of income escaping assessment. There is necessarily an element of error in cases of income escaping assessment mentioned in S.147(b) of the Act of 1961. Such error resulting in income escaping assessment becomes manifest in the light of information coming subsequently into the possession of the Income-tax Officer. Where the order making the original assessment was a legally correct order and was not vitiated by any error, the case would not be one which would fall within the ambit of S.147(b) of the Act of 1961 or S.34(1)(b)of the Act of 1922. The Income-tax Officer ordering reassessment does not sit as a court of appeal over the Income-tax Officer making the original assessment. Nor is it open to the Income-tax Officer ordering reassessment to substitute his own opinion regarding the method of computing the income for that of the Incometax Officer who made the original assessment, especially when the method of computation adopted at the time of original assessment was permissible in law. The fact mat the adoption of a different method of computation would have resulted in higher yield of tax would not in such a case justify the reopening of the assessment. The taxing authorities exercise quasi-judicial powers and in doing so they must act in a fair and not a partisan manner. The fact mat the adoption of a different method of computation would have resulted in higher yield of tax would not in such a case justify the reopening of the assessment. The taxing authorities exercise quasi-judicial powers and in doing so they must act in a fair and not a partisan manner. Although it is part of their duty to ensure that no tax which is legitimately due from an assessee should remain un recovered, they must also at the same time not act in a manner as might indicate that scales are weighted against the assessee." In Orient Paper Mills v. Union of India (AIR 1970 SC 1498) the Supreme Court laid down as follows: "The assessing authorities exercise quasi-judicial functions and they have duty cast on them to act in a judicial and independent manner. When the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment. An appeal then to the Collector becomes an empty formality. The direction given by the Collector being invalid the proceedings before the Deputy Superintendent or the Assistant Collector are vitiated." In Chief of the Army Staff and others v. Major Dharam Pal Kukrety (1985 (2) LLJ 165), it is laid down by the Supreme Court that where the threat of prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the protection under Art.226 of the Constitution of India. In that case, a question arose as to whether a writ petition is maintainable at the stage when the authority issued a show cause notice before taking any final decision. In that context, it was held that the writ petition is maintainable on the said ground. It is also laid down by the Supreme Court in Calcutta Discount Co. In that case, a question arose as to whether a writ petition is maintainable at the stage when the authority issued a show cause notice before taking any final decision. In that context, it was held that the writ petition is maintainable on the said ground. It is also laid down by the Supreme Court in Calcutta Discount Co. Ltd. v. Incometax Officer {(1961) 41ITR 191] that where such action of an executive authority acting without jurisdiction subjected, or was likely to subject, a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. It has been observed as follows: "That though the writ of prohibition or certiorari would not issue against an executive authority, the High Courts had power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjected, or was likely to subject, a person to lengthy proceedings and unnecessary harassment, the High Courts would issue appropriate orders or directions to prevent such consequences. The existence of such alternative remedies as appeals and reference to the High Court was not, however, always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. When the constitution conferred on the High Court the power to give relief it became the duty of the court would be failing to perform their duty if relief were refused without adequate reasons." Similar observations relating to S.15 of the Act have been correctly made in Aradhana Lodge v. Tahsildar (1990(1) KLT 33) and P. P. Yousef v. State of Kerala (1993 (2) KLT 59 =1993 KLJ (Tax Cases) 378). In Commissioner of Incometax v. J. Sundaram (AIR 1964 Mad. 433), the Madras High Court held that under S.35 of the Incometax Act the Tribunal cannot revise or review its own order when there is no error apparent from the record. It must be a case of mistake and the mistake must be apparent from the record. A clerical or arithmetical mistake would amount to a mistake apparent from the record. In National Rayon Corporation Ltd. v. G.R. Bahmani [(1965) 56 ITR 1141, the Bombay High Court held that the mistake need not be a clerical or mathematical mistake. It must be a case of mistake and the mistake must be apparent from the record. A clerical or arithmetical mistake would amount to a mistake apparent from the record. In National Rayon Corporation Ltd. v. G.R. Bahmani [(1965) 56 ITR 1141, the Bombay High Court held that the mistake need not be a clerical or mathematical mistake. It may be a mistake of fact as well as a mistake of law. A mistake becomes a mistake apparent from the record when it is a glaring, obvious or self-evident mistake. A mistake which has to be discovered by a long drawn process of reasoning or examining arguments on points where there may conceivably be two opinions cannot be said to be a mistake or error which is apparent from the record. 17. The following propositions of law emerge out of the above decisions: (1) Subject to the provision of period of limitation prescribed by the relevant statute, a mistake apparent from the record can be rectified by the competent authority named therein; (2) Usually, the following mistakes are considered to be "mistakes apparent from the record": (a) Arithmetical error (b) Clerical error (c) Slip or inadvertent omission in an order or judgment; (d) If the later enactment having retrospective operation enables an authority to modify or alter the original assessment order; and (e) Where in the earlier assessment order no valid principle of law was applied. (3) An authority has no jurisdiction to rectify a mistake, if (a) the authority has passed orders by taking one of the alternative views, when two views are possible; (b) the authority has adopted one of the alternative methods available for assessment of tax according to law and later finds that more amount of tax could be obtained by adopting the alternative method; (c) a mistake has to be discovered by a long drawn process of reasoning or examining arguments on points of law and on facts or when further evidence is required to be adduced to rectify the mistake; (4) Re-opening or review of an assessment order is not permissible if the relevant statute does not confer such powers on an authority; (5) Taxing authority is a quasi-judicial authority. Hence no higher administrative authority or even appellate authority without hearing the affected party or in the absence of an appeal can give direction to the assessing authority to pass orders in one way or the other. (6) A writ is maintainable even at the notice stage, where threat of prejudicial action is wholly without jurisdiction. (7) An order or direction under Art.226 of the Constitution of India can be issued by the High Court prohibiting an authority acting without jurisdiction from continuing such action inspite of existence of such alternative remedies as appeals and revisions. 18. In the light of the aforesaid principles of law, it is found that the notices issued under S.15 of the Act in O.P.No. 10901 of 1990 suffer the following vices: The original assessment was made in accordance with the provisions in subsection (1) of S.6 of the Act. By a later notice, the assessing authority turned round and sought to assess tax by adopting the method prescribed in sub-section (2) of S.6 of the Act on the ground that the latter method would yield more tax and the earlier method adopted was a mistake. What is more, the mistake was not found by the assessing authority. It was sought to be rectified on the basis of a report of the auditor who found that the alternative method should have been adopted instead of the one adopted by the assessing authority in levying the tax. That cannot be permitted. The mistake pointed out by the auditor was not a glaring, obvious or self-evident one. Moreover, the later assessment is sought to be made on the basis of a report of the Revenue Inspector as pointed out by the auditor. At the time of earlier assessment, the report was very much available on the record. The assessing authority was supposed to be aware of such a report when he decided to assess tax by adopting the method as envisaged in subsection (I) of S.6 of the Act. Later, on the advice of the auditor he cannot review or re-open the assessment on the ground that there was a mistake apparent from the record. 19. The notices issued in O.P.Nos.1106 and 1541 of 1989 also suffer the following vices: The assessment made earlier was sought to be re-opened on the observation made by the District Collector in suo mote revision proceeding which was vitiated by law. 19. The notices issued in O.P.Nos.1106 and 1541 of 1989 also suffer the following vices: The assessment made earlier was sought to be re-opened on the observation made by the District Collector in suo mote revision proceeding which was vitiated by law. It is true that the buildings in question are cinema theatres and as such it did not contain any apartments or flats. But, the local authority assigned three distinct door numbers for the buildings as it consisted of three cinema theatres. Accordingly, each individual partner of the firm was assessed with tax. Assuming that it was a mistake, yet in exercise of the powers under S.15 of the Act the assessing authority had no jurisdiction to reopen the assessment on the instruction of the District Collector. In our view, the notices in question, therefore deserve to be quashed, 20. For the reasons stated above, W.A.No.1320 of 1993, filed by the petitioners in O.P.No. 10901 of 1990, is allowed. Since the assessing authority had no jurisdiction to issue the impugned notices, the order of the learned single judge upholding the same is set aside and consequently W.A.No. 44 of 1994 is dismissed. O.P.Nos.1106 and 1541 of 1989 are allowed and the impugned notices, issued under S.15 of the Act, are quashed. No costs.