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Showing 161 to 180 of 1398 Records
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2020 (10) TMI 1238
Undisclosed income on account of interest income earned on undisclosed foreign bank account deposits u/s 69 - CIT-A deleted the addition - HELD THAT:- As decided in own case [2018 (2) TMI 1363 - ITAT DELHI] addition on account of investment in the bank account itself was deleted. As the quantum addition itself has been deleted by the coordinate bench with respect to balance in the foreign bank account, there is no question of making an addition on account of the notional interest on that balance.
When the assessee is not found to be owner of any bank account, till now, there is no reason to uphold the interest on such bank balances. If the assessee is not owner of the amount lying in the bank account, naturally the interest income cannot be added in the hands of the assessee. Even otherwise if the revenue gets any information with respect to the ownership of the money lying in the bank account with HSBC bank Geneva, then the provisions of explanation 2 (d) of Section 148 applies and the interest income can be added in the hands of the assessee. The time limit available with the revenue according to the provisions of Section 149 (1) (C) is up to 16 years. Therefore, we do not find any infirmity in the order of the learned CIT – A, at present, in deleting the addition on account of interest in the hands of the assessee for this year with respect to the alleged the holding of bank balance in the HSBC bank Geneva account, as the addition on the quantum itself has been deleted.
0n reading of the grounds of appeal of the learned assessing officer the only prayer is that when the addition has not reached finality the learned CIT – A should have upheld the addition protectively in the hands of the assessee. We could not find any provision in the act wherein the learned CIT – A could have done so. Even otherwise now there is an extended time limit available to the revenue, it may take recourse to the Section if the conditions permit. Accordingly the solitary ground of appeal of revenue dismissed.
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2020 (10) TMI 1237
Disallowance of expenditure not exclusively for business - remuneration received from partnership firm - HELD THAT:- We find that there is no reason that the expenditure cannot be allowed to a partner whose income is taxed on account of remuneration and interest received from the firm u/s 28(v) of the Act as business income. The only criteria for allowance of the expenditure are that expenditure should have been incurred by the assessee wholly and exclusively for the purpose of the business.
In the present case the assessee has given details of expenditure such as salary expenditure of driver, communication expenditure, insurance and depreciation on the vehicle. Out of the above expenditure the assessee himself has disallowed part of personal expenditure and disallowance u/s 14A of the Act. The lower authorities could not say that in all these expenditure has not been incurred by the assessee wholly and exclusively for the purpose of his business.
The allegation of the ld AO was that the expenses incurred by the assessee does not have any nexus with remuneration earned does not have any legal backing. He does not say that these expenditure are not incurred by the assessee for the purpose of the business. Naturally when the income is taxed as remuneration from firm as business income, any expenditure incurred to earn that income is an allowable business expenditure, if it satisfy the relevant criteria. It is not the case of the lower authorities that whole of the expenses incurred by the assessee were not incurred wholly and exclusively for the purposes of the business i.e. to earn remuneration from partnership firm. Therefore, disallowance made by the ld AO and confirmed by the ld CIT(A) cannot be sustained. In view of the fact that the assessee himself has disallowed personal expenditure and u/s 14 A - we direct the ld AO to delete the disallowance of expenditure - Decided in favour of assessee.
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2020 (10) TMI 1236
Classification of goods - Trapezoidal shaped pre-painted GI roof profiles - to classified under CTH 73089090 or under CTH 7216 - it was held by CESTAT that product in question should appropriately be classifiable under CTH 72169100 - HELD THAT:- Issue notice in the appeal as also in the application for condonation of delay.
To be tagged along with C.A. No.303/2020 and other connected matters.
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2020 (10) TMI 1235
Maintainability of appeal - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - Rejection of application for revision of liability of tax - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - petition dismissed.
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2020 (10) TMI 1234
Approval of the Resolution Plan - RP states that the Resolution Plan of M/s. Amit Metaliks Limited, was approved by the Committee of Creditors with 95.35% voting shares and sought for approval of the Resolution Plan of M/s. VSP Udyog Private Limited - Section 30(6), read with Section 31 of the Insolvency and Bankruptcy Code, 2016, along with Regulation 39(4) of the Insolvency u& Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- On perusal of the Plan, it is understood that the assets of the Corporate Debtor are going to rest in a safer hand. The RP, Mr. Rajesh Singhania, deserves special appreciation for finding out a Resolution Applicant, whose Plan has been approved by the Committee of Creditors by 95.35% voting share, even in these difficult times of pandemic, due to COVID-19. All the provisions of mandatory requirements are seen complied with by the Resolution Applicant, as per Form H, submitted by the RP. It makes provision for the payment of the Insolvency Resolution Process, payment of the debts of Operational Creditors, Management of the affairs of the Corporate Debtor, and also provision for implementation and supervision of the Resolution Plan. It also provides terms of the Plan and its implementation schedule. So it is a feasible and viable Plan. A judicious distribution of the financial bids by the COC to the stakeholders according to their entitlements can be inferred from the Plan under consideration.
The COC has very well deliberated with the Plans received by it and decided the viability, feasibility and financial matrix of each Plan and approved one with 95.35% vote shares of the members of the Committee of Creditors.
The Resolution Plan of M/s. Amit Metaliks Limited, which is approved by the Committee of Creditors with 95.35% voting shares, is hereby approved under provisions of sub-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016, which shall be binding on the Corporate Debtor, M/s.VSP Udyog Private Limited, its employees, members, creditors, guarantors, the Central Government, any State Government or any local authority and other stakeholders involved in the Resolution Plan - Petition allowed.
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2020 (10) TMI 1233
Maintainability of appeal - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Petition challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - HELD THAT:- The Hon'ble Supreme Court of India in Assistant Commissioner (CT) LTU, Kakinada -vs- Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2020 (10) TMI 1232
Stay of demand - Recovery proceedings - extension of interim stay - HELD THAT:- In this case, the interim order was passed on 25.02.2020 and thereafter it was extended on 17.03.2020. Thereafter, the Bench did not function. The assessee did not file any document establishing financial difficulties. However, the ld. Counsel for the assessee pleaded that due to pandemic, the assessee is unable to run the business and faced difficulties to pay the outstanding demand. Considering the present pandemic situation, we fix the appeal for hearing on 07.12.2020 with a direction to the assessee as well as the Department to cooperate for concluding the final hearing of the appeal. We further direct that the Department not to take any coercive steps to recover the outstanding demand till next date of hearing i.e. 07.12.2020.
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2020 (10) TMI 1231
Condonation of delay of 663 days in filing appeal - delay due to unavailability of the documents and the process of arranging the documents - the issue raised is that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence - HELD THAT:- A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement - It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
Looking to the period of delay and the casual manner in which the application has been worded, it is considered appropriate to impose costs on the Petitioner-State of ₹ 25,000/- to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time - SLP dismissed.
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2020 (10) TMI 1230
Removal of appellant form CoC - appellants submits that relying on the judgment of the National Company Law Appellate Tribunal NCLAT in SH. SUSHIL ANSAL VERSUS ASHOK TRIPATHI, SAURABH TRIPATHI, MR. AMARPAL RESOLUTION PROFESSIONAL, M/S. ANSAL PROPERTIES AND INFRASTRUCTURE LTD. [2020 (8) TMI 396 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI], the appellants have been removed from the Committee of Creditors - HELD THAT:- Issue notice, including to the newly added respondent, returnable in four weeks.
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2020 (10) TMI 1229
Rejection of revision under Section 35 EE of the Central Excise Act, 1944 - Jurisdiction - power of Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In- Appeal - HELD THAT:- The matter is remitted to the present Revisional Authority under Section 35 EE of the Act for fresh consideration of the matter. It shall be incumbent upon the Revisional Authority, after affording full opportunity of hearing to the Petitioner, deal with each of the contentions raised and pass reasoned orders on merits and in accordance with law, inhibited and uninfluenced by the impugned order which has been set aside and communicate the decision taken to the Petitioner by 31.03.2021 under written acknowledgment.
Petition allowed by way of remand.
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2020 (10) TMI 1228
Winding up proceedings of Mutual fund scheme - objections to the e-voting results - Need for approval of unit-holders - validity of Regulations 39 to 40 of the Mutual Funds Regulations - majority of unit-holders on the happening of any event which in the opinion of the Trustees requires a Scheme to be wound up - duties of the Trustees under the Mutual Funds Regulations - obligation of the Trustees or Trustee Company - role of SEBI - issuance of direction to SEBI - HELD THAT:- We hold that Regulations 39 to 40 of the Mutual Funds Regulations are valid.When the Board of Directors of a Trustee company, by majority, decides to wind up a Scheme by taking recourse to sub-clause (a) of clause (2) of Regulation 39, the Trustee company is bound by its statutory obligation under sub-clause (c) of clause (15) of Regulation 18 of obtaining consent of the unit-holders of the Scheme. The consent of unit-holders will be by a simple majority. In view of the obligation of the Trustees under sub-clause (c) of clause (15) of Regulation 18, a notice as required by clause (3) of Regulation 39 can be issued and published only after making compliance with the requirement of obtaining consent of the Unit-holders.
Clause 15A of Regulation 18 of the Mutual Funds Regulations 1996 operates in a different field which has nothing to do with the process of winding up of a Scheme. Therefore, compliance with Clause 15A of Regulation 18 is not a condition precedent for winding up of a Scheme pursuant to sub-clause (a) of clause (2) of Regulation 39.
Considering the duties of the Trustees under the Mutual Funds Regulations, they perform a public duty. Therefore, when it is found that the Trustees have violated the provisions of the SEBI Act or Mutual Funds Regulations, a Writ Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can always issue a writ of mandamus, requiring the Trustees to abide by the mandatory provisions of the SEBI Act or the Mutual Funds Regulations.
In the facts of the case, for the reasons which we have recorded earlier, no interference can be made with the decision of the Trustees dated 23rd April 2020 of winding up of the said Schemes. However, the decision can be implemented only after obtaining the consent of unit-holders as required by sub-clause (c) of clause 15 of Regulation 18.
On compliance being made with sub-clauses (a) and (b) of clause (3) of Regulation 39, Regulation 40 triggers in and therefore, AMC or Trustees have no right to continue the business activities of the Schemes which will include borrowings. Similarly, from the date of publication of the notice in accordance with sub-clause (b) clause (3) of Regulation 39, AMC is disentitled to honour the redemption requests made earlier.
The copy of the Forensic Audit report produced in a sealed cover, does not contain final findings and it is specifically mentioned therein that after taking the views/responses of SEBI, AMC and Trustee company, some of the conclusions in the report may undergo a change. Hence, the said report can at best be termed as a tentative report. Hence, the same is not relevant for deciding these petitions. As the said document is not relevant, it is not necessary for this Court to go into the legality of the claim for privilege.
After receiving the final findings/report of the Forensic Auditors, SEBI is bound to consider of initiating an action as contemplated by Regulation 65, depending upon the findings recorded therein. It is the obligation of the Trustees or Trustee Company to provide copies of the minutes of the meeting held on 20th and 23rd April 2020 to the Unit-holders and no confidentiality can be attached to the said minutes of the meetings - In exercise of the powers under Section 11B of the SEBI Act, SEBI has no jurisdiction to interfere with the decision of winding up of a Scheme made by taking recourse to Regulation 39(2)(a).
ORDER:-
i) We hold that no interference is called for in the decision of the Trustees taken on 23rd April 2020 of winding up the said six Schemes;
ii) We hold and declare that the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18. Hence, we restrain the Trustees from taking any further steps on the basis of the impugned notices dated 23rd April 2020 and 28th May 2020, till consent of the unit-holders by a simple majority to the decision of winding up is obtained by the Trustees in accordance with sub-clause (c) of Clause (15) of Regulation 18 of the Mutual Funds Regulations;
iii) It will be open for the Trustees to obtain consent of the unit-holders as provided in sub-clause (c) of clause (15) of Regulation 18 and to take further steps in accordance with clause (3) of Regulation 39 of the Mutual Funds Regulations;
iv) We hold that Regulations 39 to 41 of the Mutual Funds Regulations are legal and valid;
v) We direct the Securities and Exchange Board of India to ensure that the Forensic Auditors submits their report in accordance with Regulation 64 at the earliest. After the report is submitted by the Forensic Auditor, the Securities and Exchange Board of India or its Chairman shall examine the report and shall take a decision on the question of taking action as provided in Regulation 65 of the Mutual Funds Regulations and under SEBI Act. The decision shall be taken within six weeks from the date of the receipt of the Forensic Audit Report;
vi) We direct the Trustees to provide true copies of the Board Resolutions placed on record in sealed cover to unit-holders of the said six Schemes as and when they apply for providing copies thereof;
vii) We hold that the unit-holders are not entitled to receive a copy of the Forensic Audit Report filed on record in a sealed cover;
viii) No other relief is required to be granted in these writ petitions.
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2020 (10) TMI 1227
Maintainability of petition - Petitioner did not prefer any appeal (inspite of being available) before that Revisional Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. In this context, it must be recapitulated here that the Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction and held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters.
This Court does not express any view on the correctness or otherwise on the merits of the factual controversies involved in the matter - Petition dismissed.
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2020 (10) TMI 1226
Principles of Natural Justice - non-service of impugned order - case of petitioner is that it was only when coercive recovery proceedings were initiated on 26.09.2019 that he came to be aware of the passing of the assessment order - TNVAT Act - HELD THAT:- The records were called for to ascertain the veracity or otherwise of the above submission. Compilation dated 08.09.2020 contains a copy of a statement recorded at the time of inspection dated 20.10.2014 as document No.1. This reveals that the petitioner as well as his father, J.Tezoram, were in the premises during the visit. Pre-assessment notice dated 11.06.2015 appears to have been received on the same day by an individual who has signed and affixed the seal of the petitioner entity. However it is unclear as to who the person is who has received the notice - Order of assessment dated 10.09.2015 has been returned as ‘refused’ and postal cover with the aforesaid endorsement is available. The order of assessment has been served to two different addresses, and while the first order has been returned as ‘refused’, the second has been returned as ‘left’. Both acknowledgments have been placed at pages-15 and 21 of the compilation. Service is thus complete.
In view of the petitioners’ insistence that the entity is not presently functioning, revenue was directed to make a visit of the premises and file a report. An e-mail dated 07.10.2020 from the Assistant Commissioner (ST), N.S.C. Bose Road, Assessment Circle annexing photographs of the functioning entity has been received and placed on record evidencing that the assessee/petitioner entity is carrying on the same business as before from the same address and location.
There are no justification whatsoever to entertain this writ petition as the delay between 2015 and today stands unexplained. In fact, the explanation of the petitioner in regard to the delay is found to be factually incorrect - petition dismissed.
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2020 (10) TMI 1225
Grant of Interim Bail - precarious medical condition of the accused-applicant - HELD THAT:- As per the medical report which has been taken into consideration by the Delhi High Court while granting interim bail, it appears that the accused-applicant is required some surgical treatment for his ailment and, it would be appropriate to provide interim bail for medical treatment pending this bail application for final order.
Considering the medical health of the accused-applicant, Anil Kumar Sharma involved in Case No.ECIR/06/PMLA/LKZO/2019 under Section 3/4 Prevention of Money Laundering Act, 2002, P.S. Enforcement Directorate, Lucknow Zone is released on interim bail for six weeks or till he is recovered, whichever is earlier, from the date of his release on his furnishing a personal bond of ₹ 1,00,000/- and two sureties of the like amount to the satisfaction of the Special Court (P.M.L.A.), Lucknow to get himself treated at AIIMS, New Delhi - Application allowed.
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2020 (10) TMI 1224
Disallowance of provision made for privileged leave encashment - HELD THAT:- This issue is covered against the assessee by the judgment of Hon’ble Apex Court rendered in the case of UOI and Ors Vs. Exide Industries Limited [2020 (4) TMI 792 - SUPREME COURT] as per this judgement, it was held by Hon’ble Apex Court that clause (f) in section 43B of the Income Tax Act, 1961, is valid and operative for all purposes and this disallowance was made by the AO in both the years on the basis of this clause (f) of section 43B as can be seen on page 2 of the Assessment Order for Assessment Year 2011-12 and page 3 of the Assessment Order for Assessment Year 2012-13. In view of this factual and legal position, this issue is decided against the assessee.
Disallowance of provision for Bad and Doubtful Debts under section 36 (1) (VIIa) - HELD THAT:- The details as required as per Rule 6ABA were not furnished before the AO and the Tribunal restored the matter back to the file of the CIT(A) for a fresh decision after affording reasonable opportunity of being heard to both sides. Since the facts in the present two years are similar, in the present two years also, we restore this matter back to the file of CIT(A) for a fresh decision after obtaining the remand report from the AO if the assessee files the required details before the CIT(A) in compliance of Rule 6ABA. Needless to say learned CIT(A) should provide reasonable opportunity of being heard to both sides. Accordingly, the relevant ground on this issue is allowed for statistical purposes in both the years.
TDS u/s 194A - disallowance of interest paid on bank deposits - Addition u/s 40(a)(ia) because Form No.15G / 15H were not submitted before the AO and no proof was submitted before the AO regarding filing the copy of the same before the concerned CIT - HELD THAT:- An opportunity should be given to the assessee to bring on record the respective Form No.15G/15H received by the assessee and assessee should also bring evidence on record regarding submission of those Form No.15G/15H before the concerned CIT even if such submission before CIT is delayed submission. We direct he AO that if the assessee brings such evidences on record and if it is found that Form No.15G/15H were available with the assessee and copy of the same was submitted with concerned CIT even if belatedly, assessee will get the benefit of availability of such Form No.15G/15H. Hence, we restore this matter back to the file of the AO for a fresh decision
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2020 (10) TMI 1223
Validity of Reopening of assessment - invalidate sanction under section 151 - Addition u/s 68 - HELD THAT:- Wrong Section have been mentioned in the reasons and some of the Columns material for re-assessment are left ‘Blank’ and that Addl. CIT did not record how he was satisfied on wrong facts and wrong reasons would clearly show that reopening have been done in the matter without application of mind based on wrong facts and as such the reopening of the assessment cannot be justified. It may also be noted here that the Learned Addl. CIT, Range-12, Delhi while granting sanction under section 151 of the I.T. Act has mentioned in the reasons that “Yes, I am satisfied that this is a fit case for reopening under section 147.”
Such a satisfaction was not found valid by ITAT, Delhi Benches in the cases of Shree Balkishan Agarwal Glass Industries Ltd., Delhi [2020 (9) TMI 1153 - ITAT DELHI] and M/s. Behat Holdings Ltd., Delhi vs., ITO, Ward-4(3), New Delhi[2020 (1) TMI 1358 - ITAT DELHI] based on several decisions of the Hon’ble High Courts. Thus, the issue is covered against the Revenue by the above decisions of the Tribunal as well. The A.O. has thus no justification to assume jurisdiction under section 147 of the I.T. Act, 1961, in a Lawful manner and as such the same are liable to be quashed. - Decided in favour of assessee.
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2020 (10) TMI 1222
Provisional Attachment of property - HELD THAT:- Let Notice be issued to the respondents returnable on 19.10.2020.
On the returnable date, we expect the respondent No.5 to indicate by way of an appropriate reply as to his reasonable belief to take the decision to pass an order of provisional attachment of the property in exercise of his powers under Section 83 of the GST Act.
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2020 (10) TMI 1221
Misappropriation of property - petitioners are are the shareholders in the first Respondent company and together they are holding 37% of shares of the issued capital - allegation that the Respondents are misappropriating the property of the first Respondent company and in case the property is sold and consideration is taken by the Respondents in their personal accounts, they will deprive the Petitioners of their rights - HELD THAT:- The petitioners have made out prima facie case, balance of convenience is in the favour of Petitioners and in case the property of the Respondent No. 1 is sold, the same will cause irreparable loss to the Petitioners and Respondent No. 7. This cannot be compensated in terms of money.
The Respondents no. 2 to 7 are restrained from selling property of the Respondent no. 1. till further orders. Besides this, the Respondents are also directed not to change the share holding pattern of the first Respondent company without seeking prior permission from this Tribunal - List the matter on 12th November 2020.
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2020 (10) TMI 1220
Review Petition - proceedings under Signature Not Verified Digitally signed by ARJUN BISHT - HELD THAT:- We request the High Court to take up the review petition in the meantime. In the event that the High Court considers it appropriate to take up and dispose of the main writ petition, it is entirely at liberty to do so.
No coercive steps shall be taken against the petitioners till the next date of hearing - List the Special Leave Petition on 26 October 2020.
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2020 (10) TMI 1219
Approval of revised rates of license fees for the advertising hoardings in private properties - collection of license fees in garb of tax for the advertisement hoardings in the private properties - HELD THAT:- The petitioners have consistently paid the license fees on the advertisement hoardings in a private property as per the provision of Section 386(2) of the GPMC Act prior to 1992 onwards and at no point of time the petitioners have challenged the power to levy the license fees under the provisions of Section 386(2) of the GPMC Act. It is also pertinent to note that in the year 2012, the petitioners agreed for levy of the license fees by enhancing the rate by 10% every year after initial embargo of 5 years. Thus, the petitioners can be said to have waived the right to challenge the power to levy of fees for the license for outdoor advertising hoardings in private properties.
When an Article of Constitution is an enabling provision, it does not mean that the State is obligated to provide for such a statute and on that ground existing laws could be stuck down only on that premise - Section 386(2) of the GPMC Act is in operation since 1949 and the challenge thereto being ultra vires to the Articles of the Constitution would result in detriment to the public interest since the amount of license fee being collected by the Municipal Corporation along with the other amount collected by way of tax or otherwise are always being utilized for the benefit of people at large.
The Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provisions in the larger interests of the public. An attempt has been made only to set out some of the basic consideration to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining it and when such writ petitions are entertained, those petitions should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other.
On bare perusal of Sub-section-2 of Section-386 of the GPMC Act, it cannot be said that the Commissioner has excessive delegation because license fees which may be charged by the Commissioner shall come into effect only after the sanction of the Corporation and not otherwise. Thus, in effect sub-section-2 provides for procedure and limits in form of checks and balances to control the power conferred upon the Commissioner to levy the fees for the licenses to be issued as per Subsection-1 of Section 386 - It is also pertinent to note that Subsection-2 starts with the words “except as may otherwise be provided by and under this Act”, which means that it is an exception carved out from other provisions of the Act providing for any fees of license which may be issued under Sub-section-1 of Section 386. The Commissioner of the Municipal Corporation is therefore, empowered to levy fee at such rate from time to time which may be fixed but such power is subject to the sanction of the Corporation.
The fees to be charged as per the provisions of Sub-section-2 of Section 386 cannot be said to be having unbridled or unfettered power. It is also evident from the materials on record that the levy of fees to be charged for advertisement hoardings in private properties does not become effective immediately when the Commissioner proposes unless and until the same is approved by the Standing Committee which in turn is required to be approved and sanction by the Corporation as provided under Sub-section-2 of Section-386 of the GPMC Act.
The provisions of Sub-section-2 of Section 386 of the GPMC Act is constitutionally valid as per Etnry-5 read with Entry-66 of list-II of the VIIth Schedule and deletion of Entry-55 of list-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act - the provisions which are inconsistent with any of the provision of part-IX of the Constitution of India including Article 243X would be required to be amended but the provision contained in Section 386(2) of the GPMC Act cannot be said to be inconsistent with any of the provision of part-IX of Constitution of India and therefore, Article 243ZF would not come into play in the facts of the case.
The submissions of the petitioner that provision of Sub-section-2 of Section 386 suffers from excessive delegation and provided for unguided and uncanalised power to the Commissioner as there is no procedure for limits for imposition of fees in absence of any guideline is concerned, it is settled position of law that the guidelines are required to be prescribed by legislature in case where there is levy of tax and not in case where there is imposition of fees.
If the State Government is of the opinion that execution of any resolution or order of the Corporation for any of other Municipal Authority or officer subordinate thereto for doing of any act, which is about to be done or has been done for and on behalf of the Corporation is in contravention of excess of powers conferred by the GPMC Act or any other law for the time being in force or such action is likely to lead breach of the peace etc., then the State Government may by order in writing suspend the execution of order or prohibit doing of any such act. Therefore, even the sanction of the Corporation as provided under Sub-section-2 of Section 386 is subject to the control of the State Government as provided under Section 451 of the GPMC Act. In view of the above, it cannot be said that there is excessive delegation by legislature upon the Commissioner for determination of the levy of the fees under Sub-section-2 of Section 386 of the GPMC Act.
These writ applications fail and are accordingly rejected subject to the right of the petitioners to challenge the quantum of license fees before the State Government as per the provisions of the GPMC Act in accordance with law. The respondent State Government is therefore, directed to consider such challenge if made by the petitioners without being influenced in any manner by what has been stated hereinabove and decide such challenge as expeditiously as possible.
Application disposed off.
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9911796707
