TMI Blog2005 (2) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as 'the Act') for assessment of building tax for the said building. The assessing authority quantified capital value at Rs. 12,32,820/- and determined building tax payable by the appellant at Rs. 97,032/- by an order dated 15th February, 1988. The said assessment was made on an assumed rental basis submitted by the appellant. The order stated that as per the return in Form II submitted by the appellant and on enquiries conducted by the assessing authority it had been shown that the building had been constructed by the appellant after 1st April 1973. According to the assessing authority, the appellant was required to pay building tax of Rs. 97,032/-. He was, therefore, asked to pay the said amount of tax as per details mentioned in the schedule to the 'Notice of Demand'. The case of the appellant is that he had paid the said amount. Subsequently, however, the local authority fixed capital value of the building at Rs. 42,84,000/- and annual value at Rs. 4,28,400/-, Proceedings were, therefore, initiated under Sub-section (1) of Section 15 of the said Act by the assessing authority for rectification of mistake in the assessment order dated 15th February. 1988. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of different mode. Since there was no mistake, much less a mistake apparent on the face of the record, resort to Section 15 of the Act was uncalled for and the order passed by the assessing authority and confirmed by the District Collector and the High Court are liable to be set aside. 5. Learned counsel for the respondents, on the other hand, supported the order passed by the assessing authority and confirmed by the District Collector as well as by the High Court. It was submitted that no assessment could have been made under Sub-section (3) of Section 6 of the Act by the assessing authority. The said provision had no application to the facts of the case as the building was newly constructed one and the Corporation (local authority) was required to fix annual value for the first time. The power of assessing authority under Sub-section (3) of Section 6 of the Act was limited and could be exercised only in the cases covered by Sub-section (2), Sub-section (3) or Sub-section (4) of Section 5 of the Act. The cases did not relate to newly constructed buildings but applied to repair, improvement or additional construction of the buildings already in existence. Since the buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the building before effecting the major repair or improvement, as the case may be, and the capital value of the building after effecting the major repair or improvement. (3) A building the construction of which is completed on or after the 1st day of April, 1973, and which is not liable to be taxed under the provisions of this Act on account of its having a capital value of not more than twenty thousand rupees, shall become liable to be so taxed if the capital value of the building subsequently increases to more than twenty thousand rupees by new constructions or additions or combinations or as a result of repairs or improvements to the buildings. (4) Where the capital value of a building which has already been taxed under this Act is subsequently increased by more than ten thousand rupees by new constructions or additions or combinations or as a result of repairs or improvements, building tax shall be computed on the capital value of the building including that of the new constructions or additions or combinations or, as the case may be, of the building as so repaired or improved, and credit shall be given to the tax already levied. 9. Section 6 lays down meth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exercised power of determining capital value and annual value under Sub-section (1) of Section 6 of the Act, the action taken by the assessing authority under Sub-section (3) of Section 6 was legal, valid and in consonance with law. The said action could not have been made subject matter of Section 15 in the purported exercise of power of rectification of mistakes. The action of the assessing authority was illegal and unlawful. According to the appellant, proviso to Sub-section (1) of Section 16 of the Act bars revision of assessment made under Sub-section (2) or Sub-section (3) of Section 6 of the Act. 14. To us, it is clear that the action of the local authority as also of the assessing authority was legal, valid and within the powers conferred on them by the statute. Whereas Section 5 is charging section. Section 6 deals with determination of capital value. It is not in dispute that the building was completed in 1987 and the capital value exceeded Rs. 20,000/- and hence the provisions of the Act would apply to the said building. For determining the capital value, it is the local authority within whose area the building is situate to fix annual value of the building under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must frankly admit that we are unable to agree with the above submission. Apart from the fact that a court of law cannot rewrite a statutory provision, acceptance of the argument of the appellant would be destructive to the scheme of the Act making Sub-section (1) of Section 6 nugatory. The interpretation sought to be suggested by the appellant virtually deprives the statutory power of the local authority of determining capital value of a building situate within the area of such local authority. The contention is, therefore, rejected. 17. We are equally satisfied that the assessing authority was wholly justified in involving Section 15 of the Act and in exercising the power of rectification of mistake apparent on the record. 18. The expression any mistake apparent from the record used in Sub-section (1) of Section 15 of the Act cannot be defined scientifically, precisely or exhaustively and should be determined in the light of the facts and circumstances of each case. It is, however, well settled that an error can be said to be an error apparent on the face of the record, if it is patent, manifest or self evident. If one has to travel beyond the record to see whether the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law which was glaring and obvious could not similarly be rectified. Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result was necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. A notice issued by the Income Tax Officer calling upon the respondent to pay a part of the amount was hence legal and could not have been quashed by the High Court. 23. In Master Construction Co. (P) Ltd. v. State of Orissa and Anr., [1966]3SCR99 , this Court had an occasion to consider the ambit and scope of Rule 83 of the Orissa Sales Tax Rules, 1947 which enabled the Commissioner of Sales Tax to correct an arithmetical or clerical mistake or any error apparent on the face of the record. 24. Speaking through Subba Rao, J. (as his Lordship then was), the Court stated; 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 carele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There the High Court dealt with difference between reopening of an assessment and rectification of mistake apparent from the record. Drawing the distinction between the two, the High Court observed: The Act nowhere provides for the reopening of an order, and to substitute it with a fresh order on a different basis. There is no provision in the Act akin to Section 147 of the Income Tax Act, 1961 or Section 19 of the Kerala General Sales Tax Act 1963. Such a provision is significant by its absence in the Act. Section 15 which is invoked in this case is analogous to Section 154 of the Income Tax Act 1961 and Section 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 the case 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 reopening an assessment has to be sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the building is Sub-section (1) of Section 6 of the Act. Since there was no assessment of the building by the local authority at the time of original assessment proceedings, the assessing authority ought to have waited for the annual value to be fixed by the local authority. The adoption of the rental basis for completion of the original assessment in the above circumstances is without jurisdiction and is mistake apparent from the record of this case. 32. We are in agreement with what has been stated by the learned single Judge. The said reasoning was confirmed by the Division Bench. Since the case relates to a new building and as the local authority (Kozhikode Corporation) had not determined the capital value in the assessment books of the local authority under Sub-section (1) of Section 6 of the Act, the assessing authority (Tehsildar, Kozhikode) could not have exercised the power under Sub-section (3) of Section 6 of the Act. The said provision has limited application to cases covered by Sub-sections (2), (3) or (4) of Section 5 to a building already in existence and there was repair, improvement, construction, addition or combination afterwards. The said provision does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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