Lulu International Shopping Mall ... vs District Collector
2023 Latest Caselaw 8429 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

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

                             WP(C) NO. 702 OF 2020

PETITIONER/S:

             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


RESPONDENT/S:

     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)


OTHER PRESENT:

             S.KANNAN -SR.GP



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

07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)NO.702 OF 2020
                                2




                             JUDGMENT

1. 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.

2. 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).

3. In respect of the mall, the assessment proceedings

were completed on 06.03.2013 and assessed amount was W.P.(C)NO.702 OF 2020

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.

4. 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.

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

5. 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:

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.

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

present writ petition.

7. 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.

Sd/-

DINESH KUMAR SINGH JUDGE Shg W.P.(C)NO.702 OF 2020

APPENDIX OF WP(C) 702/2020

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