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TMI Blog2015 (4) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... of Police Anr. 2006 (7) TMI 660 - SUPREME COURT ], Dr. Sattur's Sushrushalaya Nurshing Home Anr. [ 1991 (8) TMI 26 - KARNATAKA HIGH COURT ] and Gian Chand Ashok Kumar and Company Ors. [ 1990 (3) TMI 13 - HIMACHAL PRADESH HIGH COURT ] it has been held that in construing a provision of an Act, a situation giving rise to anomaly and absurdity must be avoided. The flat occupied by the petitioner is to be considered as a separate unit or a newly constructed building within the meaning of Section 171(5) of the Act of 1980. This is amplified by the second proviso to Section 171(5) of the Act of 1980. The second proviso mandates rebate in respect of such building in so far as it is a single unit of assessment under Chapter XII of the Act of 1980. The writ petitioners therefore satisfy the conditions laid down in sub-section (5) of Section 171 of the Act of 1980. The writ petitioners therefore are entitled to a rebate of 25 percent in the property tax as laid down in Section 171(5) of the Act of 1980. The first ground of refusal under Section 171(5) of the Act of 1980 recorded in the impugned communication is, therefore, perverse. Whether the assessment of the flat h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The writ petitioners claim that they are entitled to receive rebate as provided under Section 171(5) of the Kolkata Municipal Corporation Act, 1980. The writ petitioners also claim that they should be assessed for the quarter following the receipt of the completion certificate. 2. Mr. N.K. Poodar learned Senior Advocate for the writ petitioners submit that, the writ petitioners are not challenging the annual valuation for the relevant quarter. The writ petitioners being entitled to rebate in accordance with Section 171(5) of the Kolkata Municipal Corporation Act, 1980 must be given such rebate. The writ petitioners have purchased a flat. The completion certificate of such flat is dated December 31, 2005. Referring to Section 171(5) of the Act of 1980 it is submitted that, a newly constructed building becomes assessable for property tax from the quarter following the date of issue of the occupancy certificate. The writ petitioners did not receive the occupancy certificate dated December 31, 2005 on the same day. There is nothing on record to demonstrate that, the occupancy certificate dated December 31, 2005 has been served upon the writ petitioners on the date of the occupa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) (Mysore Minerals Ltd. v. Commissioner of Income-tax). On the principles applicable for interpretation of a statute, he relies upon 1997 Volume 226 Income Tax Reports page 625 (SC) (Commissioner of Income-tax v. Podar Cement Pvt. Ltd.), 1981 Volume 131 Income Tax Reports page 597 (Varghese (K.P.) v. Income-tax Officer), 1994 Volume 208 Income Tax Reports page 649 (SC) (C.W.S. (India) Ltd. Ors. v. Commissioner of Income-tax), 2001 Volume 247 Income Tax Reports page 192 (SC) (K. Govindan Sons v. Commissioner of Income-tax), All India Reporter 1997 Supreme Court page 2239 (Jagdish Singh v. Lt. Governor, Delhi Ors.) and All India Reporter 1997 Supreme Court page 1006 (Sultana Begum v. Prem Chand Jain). 7. Mr. Poddar contends that, the date given on the completion certificate cannot be the date of the issue of the completion certificate unless it is demonstrated that the assessee has been served with the completion certificate on the date given on the completion certificate. The date of issue of a completion certificate must hold to be the date on which the completion certificate has been received by the assessee. Any other interpretation of the word issue would lead to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of property tax in respect of a residential flat situates on the third floor of Premises No. 107E, Block-F, New Alipore, Kolkata- 700053. The writ petitioners had made an application for mutation with the Corporation authorities. The writ petitioners were served with a hearing notice proposing to fix annual value of such flat with effect from the third quarter 2004-2005. The hearing Officer had fixed the annual value. The rate card dated September 22, 2009 was issued to the writ petitioner. Such rate card was set aside by this Hon'ble Court in W.P. No. 35 of 2010 by an Order dated February 2, 2010. The matter was remanded to the Corporation authorities by such order. The Corporation authorities were directed to determine the valuation afresh. The Hearing Officer of the Corporation authorities took up the hearing for fixation of annual valuation. 13. The writ petitioners claim that an Order dated March 27, 2012 was passed by the Hearing Officer. The writ petitioners claim that they were not served with such order. The Corporation authorities have used an affidavit in these proceedings. The Corporation authorities have also not disclosed the Order dated March 27, 2012. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng given in Section 3(7) of the Act of 1951 and has held that a building must include part of a building. 19. That the Kolkata Municipal Corporation must value the units of different flats in a multistoried building and apportion the valuation of each flat treating each flat as a separate unit has been held in Lake Co-operative Housing Society Ltd. Ors. (supra). 20. The word building is defined in Section 2(5) of the Kolkata Municipal Corporation Act, 1980. The same is as follows:-- (5) building means a structure constructed for whatsoever purpose and of whatsoever materials and includes the foundation, plinth, walls, floors, roofs, chimneys, fixed platforms, verandas, balcony, cornice or projection or part of a building or anything affixed thereto or any wall (other than a boundary wall less than three meters in height) enclosing or intended to enclose any land, signs and outdoor display structures but does not include a tent, samiana or tarpaulin shelter. 21. The definition of building appearing in the Kolkata Municipal Corporation Act, 1980 is an inclusive definition and allows an interpretation that a part of the building could be a building for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be recoiled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of harmonious construction . (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a dead letter or useless lumber is not harmonious construction. (5) To harmonize is not to destroy any statutory provision or to render it otiose. 26. In Ranbaxy Laboratories Ltd. Ors. (supra), R B Falcon (A) Pty. Ltd. (supra), A.N. Roy, Commissioner of Police Anr. (supra), Dr. Sattur's Sushrushalaya Nurshing Home Anr. (supra) and Gian Chand Ashok Kumar and Company Ors. (supra) it has been held that in construing a provision of an Act, a situation giving rise to anomaly and absurdity must be avoided. 27. Ajax Products Ltd. (supra) and S. Sundaram Pillai Ors. (supra) deals with the function of a proviso in a section. In Ajax Products Ltd. (supra) it has been held as follows:-- The function of a proviso has been considered by this court in Commissioner of income-tax v. Indo-Mercantile Bank Ltd. It is neatly summarized in the headnote thus: The proper functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision. 29. Sub-section (5) of Section 171 of the Act of 1980 is as follows:-- (5) Where a newly constructed building is used exclusively for residential purposes, a rebate of twenty-five percent in the property tax as determined under sub-section (2) shall be allowed for the first three years from the quarter following the date of issue of initial the occupancy certificate under the provisions of this Act: Provided that such rebate shall not be allowed for old buildings which have been redeveloped through alterations or additions: Provided further that such rebate shall be allowed in respect of such building in so far as it is a single unit of assessment under this Chapter. 30. There are two provisos in sub-section (5) of Section 171 of the Act of 1980. The first proviso mandates that no rebate shall be allowed for old buildings which have been redeveloped through alterations or additions. The fact of this case does not demonstrate that an old building has been redeveloped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05. There is no material on record to establish that the completion certificate was served upon the writ petitioners on December 31, 2005 itself. On the contrary, it is stated in the writ petition that the completion certificate dated December 31, 2005 was served upon the developer in January 2006. This fact has not been denied in the affidavit-in-opposition used on behalf of the Corporation authorities. Therefore, the completion certificate was served in January 2006 and not on the date appearing in the completion certificate. 35. The point of contention is the meaning of the words the date of issue used in Section 171(5) and Section 178(5) of the Act of 1980. In the facts of the case, what would be the date of issue of the initial occupancy certificate? The occupancy certificate is dated December 31, 2005. According to the writ petitioners the date of issue of the completion certificate should be read to mean the date on which the completion certificate has been served on the writ petitioners and not the date of the issue appearing on the completion certificate. 36. In Kundan Lal Behari Lal (supra) the word issued occurring in Section 18(2) of the Wealth Tax Act cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the context of the definition of building given in Section 2(5) of the Act of 1980. The word building should also be construed in view of the ratio laid down in Lake Co-operative Housing Society Ltd. Ors. (supra). A flat in a building should be construed as a separate unit for the purpose of assessment of property tax of a building within the meaning of Section 171(5) and 178(5) of the Act of 1980. Multistoried buildings are divided into flats or units. If one is to accept the second reason for rejection of the conferment of benefits under these sections of the Act of 1980 as made out in the communication of the corporation dated July 11, 2012 that, the rebate under Section 171(5) cannot be given to a flat in a building, the same would do violence to the concept of building as enunciated in Lake Co-operative Housing Society Ltd. Ors. (supra) and the definition of building under Section 2(5) of the Kolkata Municipal Corporation Act, 1980. A flat comes within the definition of building given in Section 2(5) of the Act of 1980. Consequently, a flat would also come within the meaning of building used in Sections 171(5) and 178(5) of the Act of 1980. Such an interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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