2023 (8) TMI 651 - HC - VAT and Sales Tax

Payment of the Local Body Tax (LBT) under the Maharashtra Municipal Corporation Act, 1949 - Chole Village is included in the local urban area of the Kalyan-Dombivali Municipal Corporation, or not - refund of amount paid by the Petitioner or recovered from the petitioner on account of LBT, interest and penalty - vires of sub-rule (2) and sub-rule (3) of Rule 48 of the LBT Rules respectively for levy of penalty and interest to the Municipal Act - cancellation of LBT registration Certificate - levy of interest and penalty. HELD THAT - It is clear from the notification that it is issued in exercise of the powers conferred on the State Government under clause (a) of sub-section (3) of Section 3 of the MMC Act. It also specifically refers to the factors mentioned in clause (2) of Article 243Q of the Constitution, as also to the revised boundaries of the municipal corporation, to the effect that after inclusion of the area specified in Schedule-I, it shall be such area as specified in Schedule-II. Schedule-II of the notification provides for the revised boundaries of the larger urban area for which the Municipal Corporation for the City of KalyanDombivali, in which in paragraph 1 under the title North , Village Chole has been included. Thus, on a conjoint reading of Article 243Q read with Section 3(3)(a) and (b) of the MMC Act, as also the definition of the larger urban area as provided in Section 2(30A) of the MMC Act, it is clear that Village Chole forms part of the revised boundary of the larger urban area as Article 243Q read with the provisions as noted by us above of the MMC Act would contemplate. Jurisdiction of municipal corporation when the provisions of the LBT stand deleted - HELD THAT - Section 78 of the Maharashtra Act No. XLII of 2017 which is a saving provision, which provides that the amendments made by the said Act to the Maharashtra Municipal Corporations Act shall not affect the provisions of the MMC Act, when it provides that notwithstanding the amendments made in the Mumbai Municipal Corporation Act, by such Act (Maharashtra Act No. XLII of 2017), those laws and all rules, regulations, orders, notifications, form, certificates and notices, appointments and delegation of powers issued under the MMC Act which were in force immediately prior to the appointed day of the Maharashtra Goods and Services Tax Act, 2017, shall subject to the other provisions of the said Act, in so far as they apply, continue to have effect after the appointed day of the Maharashtra Goods and Services Tax Act, 2017, for the purposes of the levy, returns, assessment, re-assessment, appeal, determination, revision, rectification, reference, limitation, production and inspection of accounts and documents and search of premises, transfer of proceedings, payment and recovery, calculation of cumulative quantum of benefits, exemption from payment of tax and deferment of due date for payment of tax, cancellation of the certificate of Entitlement etc. as also whether or not the tax, penalty, interest, sum forfeited or tax deducted at source, if any, in relation to such proceedings is paid on or before the appointed day - Section 78 has clearly saved the applicability of the LBT provisions for the relevant period even after coming into force of the GST regime. Thus, Section 78 of the Maharashtra Act No. XLII of 2017 itself provides that the repeal is in view of the provisions of the MGST Act, 2017 being brought into force. The contention that in view of the deletion of the provisions of the LBT by Maharashtra Act No. XLII of 2017, the saving clause would not operate and the entire exercise of assessment as undertaken by the municipal corporation in regard to the LBT being levied by the municipal corporation is without jurisdiction, cannot be accepted - Such argument is in fact contrary to the provisions of Section 78 of the Maharashtra Act No. XLII of 2017 and Section 173 of the MGST Act. Interest and penalty - HELD THAT - The rules themselves are clear that they would provide for interest and penalty to be levied in the event the circumstances so arise and the tax has not been paid as per the provisions of the Act. It is not the petitioner s case that the rules are framed without any corresponding provision and the power vested under the MMC Act. This apart, it is also found that such a challenge as mounted in the petition on the interest and penalty, is a contention in desperation. In the context of the contention as raised by the petitioner, we also cannot be oblivious of the fact that the petitioner had voluntarily registered itself as a dealer under the provisions of the MMC Act, as also has partly deposited the LBT due and payable, and now after the assessment orders are passed, and a demand is made by the petitioner against the petitioner, the petitioner decided to knock the doors of this Court. Thus, the petitions cannot be entertained and are liable to be dismissed.

Summary

Issues Involved:

1. Jurisdiction of the Municipal Corporation to levy Local Body Tax (LBT).
2. Deletion of LBT provisions under the Maharashtra Act No. XLII of 2017.
3. Legality of demanding interest and penalty under LBT provisions.

Summary:

1. Jurisdiction of the Municipal Corporation to levy Local Body Tax (LBT):

The petitioner challenged the jurisdiction of the Kalyan-Dombivali City Municipal Corporation to levy LBT, arguing that their factory in MIDC-Chole Village is outside the municipal corporation's jurisdiction. The petitioner cited a notification dated 14 May 2015, claiming that Village Chole was not included in the municipal area. The court referred to Article 243-Q of the Constitution and Section 3 of the Maharashtra Municipal Corporation Act (MMC Act), which define the constitution and boundaries of municipal areas. The notification dated 14 May 2015, issued under Section 3(3)(a) of the MMC Act, included Village Chole within the revised boundaries of the municipal corporation. Therefore, the court held that Village Chole is within the jurisdiction of the Kalyan-Dombivali Municipal Corporation, and the petitioner's contention was deemed untenable.

2. Deletion of LBT provisions under the Maharashtra Act No. XLII of 2017:

The petitioner argued that the LBT provisions were deleted by Maharashtra Act No. XLII of 2017, and therefore, the municipal corporation had no jurisdiction to levy LBT. The court referred to Section 78 of the Maharashtra Act No. XLII of 2017, a saving provision that ensures the continued applicability of the LBT provisions for the relevant period even after the introduction of the Maharashtra Goods and Services Tax Act, 2017. The court concluded that the repeal of LBT provisions did not affect the municipal corporation's jurisdiction to levy LBT for the periods in question, and the petitioner's argument was contrary to the saving clause.

3. Legality of demanding interest and penalty under LBT provisions:

The petitioner contended that the demand for interest and penalty was illegal, arguing that the LBT provisions did not permit such levies. The court noted that the rules clearly provided for the levy of interest and penalty in cases where tax was not paid as per the provisions of the Act. The court found that the petitioner's challenge was not substantiated, as the rules were framed under the authority of the MMC Act. Additionally, the petitioner had voluntarily registered under the MMC Act and had partially paid the LBT due. The court dismissed the contention as a desperate argument.

Conclusion:

The court dismissed the petitions, ruling that the Kalyan-Dombivali City Municipal Corporation had jurisdiction to levy LBT, the deletion of LBT provisions did not affect the municipal corporation's authority for the relevant periods, and the demand for interest and penalty was legally valid. The petitioner was advised to seek alternate remedies by filing an appeal under Section 406 of the MMC Act.