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TMI Blog2019 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 that by demand drafts of ₹ 5,95,094/- and ₹ 4,89,972/- of 10th March, 2014, part payment of local body tax for the period of April 2013 to January 2014 is made. The local body tax is thus cleared and if there is any liability in relation thereto, remaining to be cleared, the petitioner pointed out by its letter of 4th July, 2014 that they are not liable to pay any penalty. Thus, the tax is paid in full and there was no justification for levy of penalty. It is stated that the petitioner has paid the amount of tax. Petition allowed. - WRIT PETITION NO.11134 OF 2014 - - - Dated:- 1-8-2019 - S. C. DHARMADHIKARI SANDEEP K. SHINDE, JJ. Dr. Birendra Saraf, Senior Counsel a/w Mr.Vaibhav S. Charalwar and Ms. Chaya Asher i/b M/S K. Ashar Co. for the Petitioner. Mrs. Ashwini A. Purav, AGP for State- Respondent No.1. Mr. A.P. Kulkarni a/w Mr. A.R. Nandu for Respondent Nos.2 to 4. P.C. :- 1. By this writ petition under Article 226 of the Constitution of India, the petitioner-Tech Mahindra Limited has impleaded the State of Maharashtra, Joint Commissioner of Local Body Tax, Pune Municipal Corporation together wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit must be mandated by the legal provision under which the appeal is provided. In any event, if the appeal can be filed against the demand, then, during the pendency of the appeal, the pre-deposit could not have been insisted. If indeed there is no appeal provided against the demand of penalty, then, all the more, before such imposition is justified in a legal proceeding before the competent forum, recovery by coercive means was out of question. 8. Only on this short point, the matter has remained pending in this Court. 9. Rule 36 of the Maharashtra Municipal Corporations (Local Body Tax), Rules, 2010, according to the petitioner, provides for an appeal under sub-section (6) of Section 406 of the then Bombay Provincial Municipal Corporation Act, 1949 and now the Maharashtra Municipal Corporations Act, 1949. Section 406, as it stands today, reads as under :- 406. (1) Subject to the provisions hereinafter contained, appeals against any rateable value or the capital value, as the case may be, or tax fixed or charged under this Act shall be heard and determined by the judge. (2) No such appeal shall been entertained unless - (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (3), the Commissioner shall intimate to the Judge the names and other particulars of the appellants who have deposited with him the required amount within the prescribed period and the names and other particulars of the appellants who have not deposited with him such amount within such period. On receipt of such intimation, the Judge shall summarily dismiss the appeal of any appellant who has not deposited the required amount with the Commissioner within the prescribed period. (5) In the case of any appeal, which may have been entertained by the Judge before the date of commencement of the Act aforesaid or which may be entertained by him on and after the said date, the Judge shall not here and decide such appeal, unless the amount of the tax claimed by each of the bills, which may have been issued since the entertainment of the appeal, is also deposited, from time to time, with the Commissioner in the first month of the half year to which the respective bill relates. In case of default by the appellant at any time before the appeal is decided, on getting an intimation to that effect from the Commissioner, the Judge shall summarily dismiss the appeal,] (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (4) with sub-section (5) which provides that in the case of any appeal, which may have been entertained by the Judge before the date of commencement of the Act or which may be entertained by him on and after the said date, the Judge shall not hear and decide such appeal, unless the amount of the tax claimed by each of the bills, which may have been issued, is also deposited, from time to time, with the Commissioner as provided. In case of default by the appellant at any time before the appeal is decided, on getting an intimation to that effect from the Commissioner, the Judge shall summarily dismiss the appeal. Now, an appeal against the demand notice in respect of cess under Chapter XI-A or the local body tax under Chapter XI-B has been provided by sub-section (6) to the Deputy Commissioner, when the demand notice has been raised by the cess Officer or by any other officer, not being the Deputy Commissioner and to the Commissioner, when raised by the Deputy Commissioner. The appeal has to be filed within fifteen days and for it to be entertained, the amount of disputed tax claimed from the appellant has to be deposited by the appellant with the Commissioner. 11. The arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the petitioner has filed an appeal with the office of the Commissioner under Section 406(6) of the Maharashtra Municipal Corporations Act, 1949 towards the disputed amount of penalty. Therefore, the local body tax having been already paid, any liability to pay penalty does not arise. If there is an alleged delay in making payment of local body tax, then, the petitioner stated that there is an explanation and which should be considered before such demand for penalty is raised. 15. It is categorically stated in the memo of the writ petition as well that the tax liability has been cleared. The petitioner has stated that the demand drafts of 10th March, 2014 by which part payment was made of the local body tax followed by further payment of ₹ 14,28,961/- alongwith interest of ₹ 1,76,668/- towards part payment of local body tax dues on 1st April, 2014, fully satisfies the demand for the tax and we find that this explanation has not been considered nor the petitioner has been afforded an opportunity to contest the demand of penalty. The show cause notice in that behalf is taken to be uncontested. That does not appear to be the position as narrated in the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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