The short question that arises for consideration in this Original Petition is whether the appellate authority was justified in invoking the power of “rectification” envisaged under Section 15 of the Kerala Building Tax Act 1975, (for short the Act), in the facts and circumstances of the case.

2. Petitioner who owns a cinema theatre was assessed under the Act and directed to pay an amount of Rs.12,000/- towards tax by the assessing authority in Ext.P1 order dated June 23, 1994. After more than 2 years, the successor in office reopened the above assessment order and found that petitioner was liable to pay Rs.72,000/- as tax instead of Rs.12,000/- as found earlier. Ext.P2 is the revised order passed by the assessing authority.

3. The above order was challenged by the petitioner before the appellate authority, the Revenue Divisional officer. By order dated December 6, 1996 the revised order of the assessing authority was set aside by the appellate authority. A copy of the said order is on record as Ext.P3. But the revisional authority, the District Collector, in exercise of the power of revision under Section 13 of the Act, called for the records and set aside the order of the appellate authority. The said order of the revisional authority was challenged by the petitioner before this Court. in Ext.P4 judgment, this Court found that there was dispute with regard to the plinth area of the building and therefore the matter was remitted back to the assessing authority.

4. Petitioner challenged the above judgment before a Division Bench of this Court. While allowing the appeal the Division Bench found that the District Collector had no power under Section 13 of the Act to revise an order suo motu, if the order in question had been passed more than 3 months earlier. Ext.P5 is the true copy of the judgment of the Division Bench, which was passed on November 10, 1998.

5. But on October 25, 1999 the appellate authority suo motu reviewed its earlier order (Ext.P3) by invoking the power under Section 15 of the Act. The authority held that there was error in reckoning the actual plinth area and therefore the assessing authority was justified in revising the order of his predecessor. Consequently the appellate authority took the view that his predecessor had committed serious error in allowing the appeal of the assessee. Thus, while upholding the revised order of the assessing authority passed under Ext.P2, the appellate authority directed the petitioner to remit the balance amount of tax viz., Rs.60,000/-. The said order, a copy of which is on record as Ext.P6, is under challenge in this Original Petition.

6. Relevant clauses of Section 15 of the Act are extracted hereunder:

“15. 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 of 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) …………………..

(3) ……………………”

(emphasis supplied)

7. A perusal of the above provisions unambiguously shows that the appellate authority has egregiously erred in arrogating to itself the purported power of rectification envisaged under Section 15 of the Act. It is undoubtedly true that the appellate authority or the revisional authority may at any time within 3 years from the date of an order passed by it on appeal or revision as the case may be, of its own motion rectify any mistake apparent from the record of