J.B. Koshy, J.

1. Petitioners are the owners of a building construction of which was completed as early as on 1.2.1993. Petitioners filed a return in time to the Tahsildar, Thalassery showing the completion date as 1.2.1993 under the Building Tax Act. But the assessment was delayed for no fault of the petitioners. Assessment order was passed only on 26.11.1997 with the rate of tax existing on the date of assessment. By that time when assessment order was passed the rate in the Schedule was changed. Petitioners questioned the assessment on two grounds. According to the petitioners the measurement was not correct. Secondly the rate of tax should be based on the date of completion of the building, the taxable event. The matter was considered by the appellate authority. The appellate authority wanted a further measurement and remanded the matter for remeasuring. With regard to the rate of tax, there was no finding as the matter was remanded to the authority. Again the matter was considered and it was reported that it was correctly measured and measurement is 966.92 M2. However, the authority did not go through the contention of the petitioners regarding the rate of tax as that contention was not considered by the appellate authority. Ext. P3 shows that appellate authority did not make any finding regarding the rate of tax. In fact, the operative portion is as follows:

" ........ the case is remanded back to the Tahsildar, Thalassery for fresh disposal after remeasuring the plinth area on due notice to the appellant."

In view of the above order, the assessing authority has to find out the plinth area with notice to the petitioner and then makes assessment. It is an open remand. Therefore, question of rate of tax should have been considered by the assessing authority and assessing authority went wrong in holding that in view of the appellate authority order, question of rate of tax cannot be looked into by him. What is 'the rate of tax' to be paid is a question of law and it can be decided by this Court. It is not disputed that the taxable event is the completion of the construction of the building and it is also not disputed that building was completed on 1.2.93. It is contended that rate of tax to be applied while assessment is the rate prevailing on the date of taxable event, i.e. the date of completion of the building.

2. Learned Government Pleader relied on S.5(2) of the Building Tax Act. S.5(1) of the Act is the charging section which is as follows :

"5. Charge of building tax : (1) Subject to the other provisions contained in this Act, there shall be charged a tax (thereinafter referred to as "building tax") based on the plinth area at the rate specified in the Schedule on every building the construction of which is completed on or after the appointed day."

The above section was substituted by Act 3 of 1992 with effect from 10.2.1992. Before the above amendment S.5(1) was as follows:

"5. Charge of building tax:- (1) Subject to the other provisions contained in Act there shall be charge a tax (hereinafter referred to the "building tax") at a 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 twenty thousand rupees".

Thus with effect from 10.2.1992 assessment made on capital value was changed to plinth area. But in both sections chargeable event is completion of the building which is explained in Explanation as follows:

"Explanation 1. For the purpose of this Act, the construction of a building shall be deemed to have been completed when it is ready for occupation or has been actually occupied, whichever is earlier.

" S.5(2) was substituted by Act 13 of 1993 with effect from 1.3.1993. It is as follows:

"5. Charge of building tax:-

(2) 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