9911796707
TMI Blog2017 (4) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... ,55,35,314/towards nineteen and four such sites of the Petitioners towards levy of property taxes including arrears. These have been followed by final demand notices under Section 41 of the Maharashtra Municipal Corporations Act ("Act") inter alia threatening to attach movable and immovable properties of Petitioner No.1. 3 One of the main challenges in the petition concerns the exigibility of mobile towers to property tax to be levied by municipal corporations. That issue has since been settled by the Supreme Court in its judgment in the case of Ahmedabad Municipal Corporation vs. G.T.L. Infrastructure Ltd. AIR 2007 SC 597, holding them to be exigible to property tax. The Petitioners do not dispute this position. They, however, persist in their challenge to the individual items of the demand raised on them, offering to pay the undisputed amount. 4 There are, in all, eleven items of tax claimed by the Respondent in its demand notices. The dispute pertains to five items in particular. These are (i) conservancy tax, (ii) water supply benefit tax, (ii) conservancy benefit tax, (iv) shasti on illegal constructions and (v) penalty. Of these, the Petitioners press their submissions only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken by municipal agency. No such tax can, however, be levied if the Commissioner is of the opinion that no such matter as aforesaid accumulates or is deposited in or upon such premises. For the purposes of clause (b), the premises may be situated anywhere in the municipal limits but there should be a privy, watercloset, cesspool, urinal, bathing place or cooking place in such premises which must be connected by a drain with a municipal drain. 6 The argument of Mr.Tulzapurkar for the Petitioners is that there is no public notice as provided in clause (a) in respect of the portion of the city in which the subject premises, namely, the Petitioners' mobile towers, are situated. In any event, it is submitted that no such matter, as referred to in clause (a), accumulates or is deposited in or upon the subject premises. Alternatively, it is submitted that there is no privy, watercloset, cesspool, urinal, bathing place or cooking place connected by drain with a municipal drain in the subject premises. The argument sounds attractive but then it could very well be addressed to the appellate forum under Section 406 of the Act. Any tax fixed or charged under the Act can, after all, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioners will have to cross one important hurdle. The Act provides for a statutory remedy by way of an appeal under Section 406 of the Act. The Petitioners will have to satisfy this court as to why their petition should be entertained despite the availability of an adequate alternative statutory remedy. Mr.Tulzapurkar submits that Section 406 of the Act provides for appeals against "any ratable value or capital value, as the case may be, or tax fixed or charged under the Act". Learned Counsel submits that the subject matter in the present case, being shasti or penalty, which is charged under Section 267A of the Act, is not "tax". It is submitted that no appeal lies under Section 406 to the appellate forum from such penalty. Mr.Tulzapurkar relies on judgments of the Supreme Court in the cases of Joint Commissioner of Incometax, Surat vs. Saheli Leasing and Industries Ltd. (2010) 6 SCC 384 and Pratibha Processors vs. Union of India (1996) 11 SCC 101, and the judgment of our court in the case of Commissioner of Incometax vs. Jagdishprasad Ramnath 1954 SC OnLine 93 : AIR 1955 Bom 255 in support of his contentions. It is submitted, on the other hand, by learned Counsel for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appeal against the quantum of penal interest. 10. In Saheli Leasing & Industries Ltd. (supra), the Supreme Court brought out the distinction between 'tax' and 'penalty' in the context of a question posed to it regarding leviability of penalty under Section 271(1)(c) of the Income Tax Act, 1961, even if reassessed income was loss/nil. The court held that the purpose behind Section 271(1)(c) was to penalise the assessee for (a) concealing particulars of income and/or (b) furnishing inadequate particulars of such income. The section, accordingly, provided for penalty not only in a case where, after addition of the concealed income, the assessment yields positive income, but also in a case where addition does not so yield positive income, as in the case of such addition reducing the returned loss but still showing the reassessed income to be in the negative. Whilst holding that even if no tax was payable, penalty was still leviable, the court observed that both provisions, i.e. penalty and charging provisions, had "different objects and consequences". They operated in different fields qua the assessee. In Pratibha Processors's case (supra), the Supreme Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hholding payment of tax as and when it is due and payable. These are the ordinary connotations of the terms. But, though these ordinary connotations may be well known, it is clearly permissible to the legislature to use the terms interchangeably. It may well be that the term 'interest' in a particular fiscal statute is used in the sense of 'penalty' or the word 'penalty' is used in the sense of a 'tax', namely, compulsory exaction of money by a public authority for public purposes. 12 Let us now consider the words "penalty" (used in Section 267A of the Act) and "tax" (used in Section 406 of the Act) in our case. In the first place, it is important to remember that we are concerned here with a statute providing for municipal taxation. Municipal taxes are compulsory exactions by local bodies for the public purpose of municipal governance. These taxes, which generally go by the name 'property taxes', are leviable on properties coming within the municipal limits. In our case, Sections 128A and 129 provide for property taxes on structures within the city, which are legally erected, whereas Section 267A provides for penalty on structures within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; fixed or charged under the Act shall be heard and determined by the judge (defined under Section 2(29) of the Act). Subsection (2) inter alia provides that no such appeal shall be entertained in the case of an appeal against any tax including interest and penalty imposed in respect of which provision exists under the Act for a complaint to be made to the Commissioner against the demand, unless such complaint has previously been made and disposed of. That clearly gives away the intention of the legislature to treat penalty as tax for the purposes of Section 406 and make any fixation or charge of penalty appealable. Mr.Tulzapurkar contends that this provision merely deals with those cases where a provision exists under the Act for a complaint to be made to the Commissioner against the demand of interest or penalty charged. That is not the point. The provision is clearly to provide for the cases suggested by Mr.Tulzapurkar. But the corollary is that interest or penalty charged under the Act, by definition, comes within the expression 'tax' used in subsection (1) of Section 406. Appeals merely lie against the matters provides for in subsection (1), which include 'tax' ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
