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2023 (8) TMI 934 - HC - VAT and Sales TaxMaintainability of petition assailing the assessment - availability of alternate remedy of appeal - Validity of assessment orders - Levy and recovery of Local Body Tax (LBT) - bringing the goods, subject matter of assessment within the municipal limits for use, consumption and sale or not - vires of sub-section 152D of the MMC Act - HELD THAT - The municipal taxation in regard to the levy and recovery of the LBT is part of a well defined statutory scheme, which is a Code by itself. The question would be whether the petitioner has made out any exceptional case so as to be made an exception from deviating the statutory scheme and discipline as may be legitimately required in entertaining the present petition. Considering the case as averred by the petitioner in the petition, it is opined that at this stage of the proceedings, the vires of sub-section 152D of the MMC Act not examined, as challenged by the petitioner - this is because what was questioned by the petitioner are primarily the assessment orders. It would quite justified in taking such view considering the clear averments as made in the memo of petition in paragraph 5(f) when the petitioner takes a position contrary to the well settled principles of law, i.e. when the petitioner contends that the provision of not allowing filing of a statutory appeal without deposit of the disputed tax is arbitrary, harsh and irrational (when the validity of the said provision of pre-deposit has already been upheld . Also when the petitioner clearly avers in the petition that it is difficult for the petitioner to pay the entire amount of disputed tax to maintain the appeal, and for such reason this petition is filed. The Division Bench of this Court in case KHARGHAR CO-OP. HOUSING SOCIETIES FEDERATION LTD. AND ORS. VERSUS MUNICIPAL COMMISSIONER, PANVEL MUNICIPAL CORPORATION AND ORS. 2023 (4) TMI 1241 - BOMBAY HIGH COURT when in the context of payment of municipal taxes the Division Bench referring to the provisions of Section 406 and considering the several decisions of the Supreme Court in Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta and Anr. 1963 (12) TMI 6 - SUPREME COURT ; Income-Tax Officer Lucknow Vs. M/s S.B. Singar Singh Sons Anr. 1976 (8) TMI 5 - SUPREME COURT ; Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. Ors. 1984 (11) TMI 63 - SUPREME COURT ; M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority Ors. 2023 (2) TMI 64 - SUPREME COURT has held that the petition under Article 226 of the Constitution assailing the assessment and demand order ought not to be entertained and the proper remedy would be to challenge the assessment order by taking recourse to the statutory remedy of an appeal - Such decision is squarely applicable in the facts of the present case, as contention of the petitioner is similar to one considered by the Division Bench in Kharghar Co-op. Housing Societies case. Petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally - HELD THAT - In so far as the contention of the petitioner on merits are concerned namely that the petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally and therefore such goods are not liable for the levy of the LBT, is a factual contention, which can be effectively examined on the basis of the documents and which can be certainly examined in the proceedings of a statutory appeal. The petitioner has not made out any case for interference in these petitions so as to pursuade the Court to make an exception to entertain the petitions, notwithstanding the statutory remedy of an appeal available to the petitioner as provided under the provisions of Section 406 of the MMC Act - merely for the reasons that the vires of a statutory provision namely Section 152D of the MMC Act being assailed by the petitioner, would not mean that de hors a strong foundation and a cause of action for assailing such provision being made out, the Court nonetheless would be under an obligation to examine the vires of the said provision and entertain the petitions. The petitioner is permitted to avail the remedy of an appeal under Section 406 of the MMC Act to assail the impugned assessment orders. Let such appeal be filed within four weeks from today - If such appeals are filed, the same be adjudicated by the appellate authority on its merits without an objection as to limitation as the petitioner was bonafide pursuing the present proceedings. All contentions of the parties on the merits of the proceedings if any instituted before the appellate authority are expressly kept open. Petition disposed off.
Issues Involved:
1. Maintainability of the petition under Article 226 of the Constitution. 2. Applicability of Section 152D of the MMC Act. 3. Validity of the assessment orders and the levy of Local Body Tax (LBT). Issue 1: Maintainability of the Petition under Article 226 of the Constitution Ms. Sagvekar, learned Counsel for the respondent-municipal corporation raised a preliminary objection to the maintainability of this petition on the ground that there is an alternate remedy of an appeal available to the petitioner under Section 406 of the Act. She referred to the decision of the Division Bench of this Court in the case of Kharghar Co-op. Housing Societies Federation Ltd. through General Secretary & Anr. Vs. Municipal Commissioner, Panvel Municipal Corporation WRIT PETITION NO. 8586 OF 2021, decided on 6 April 2023, and the recent judgment of the Supreme Court in M/s Godrej Sara Lee Limited Vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors. 2023 SCC OnLine SC 95. The Court held that the petitioner could not maintain a petition under Article 226 to assail the assessment order and should avail the statutory remedy of an appeal. Issue 2: Applicability of Section 152D of the MMC Act Mr. Desai, learned Senior Counsel for the petitioner, contended that the provisions of Section 152D are inapplicable as the liability to pay LBT arises merely because the petitioner was purchasing goods from unregistered dealers within the municipal limits. He argued that the benefit of Section 152B also needs to be made available to the petitioner, making the levy bad and illegal. He further contended that Section 152D is ultra vires the Constitution and violative of Article 19(1)(g) as it levies tax on the purchase value of goods without establishing that the suppliers are unregistered and the goods were imported into the municipal limits. Issue 3: Validity of the Assessment Orders and the Levy of Local Body Tax (LBT) The petitioner challenged the assessment orders dated 13 March 2023, which levied LBT for the years 2015-16 and 2016-17. The petitioner argued that the assessment was made without authority of law, without establishing that the suppliers were unregistered and the goods were imported into the municipal limits. The petitioner also contended that the requirement to deposit the disputed tax to maintain an appeal is arbitrary, harsh, and irrational, making it difficult for the petitioner to pay the entire disputed tax amount. Judgment: The Court observed that the municipal taxation scheme under the MMC Act is a well-defined statutory code and the petitioner has not made out any exceptional case to deviate from the statutory scheme. The Court held that the petitioner should avail the statutory remedy of an appeal under Section 406 of the MMC Act to challenge the assessment orders. The Court noted that the petitioner's contention that the provision requiring deposit of the disputed tax to maintain an appeal is arbitrary and harsh has already been upheld in previous judgments. The Court also referred to the Division Bench's decision in Kharghar Co-op. Housing Societies, which emphasized the need to follow the statutory appeal process for challenging municipal tax assessments. The Court dismissed the petitions, allowing the petitioner to file an appeal within four weeks and directed the appellate authority to adjudicate the appeals on their merits without an objection as to limitation. The Court kept open the challenge to the vires of Section 152D to be asserted as and when needed. Order: 1. The petitioner is permitted to avail the remedy of an appeal under Section 406 of the MMC Act within four weeks. 2. The appellate authority should adjudicate the appeals on their merits without an objection as to limitation. 3. The challenge to the vires of Section 152D of the MMC Act is kept open for future assertion. 4. The petitions are disposed of with no costs.
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