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TMI Blog2017 (10) TMI 1642X X X X Extracts X X X X X X X X Extracts X X X X ..... isement tax on their behalf, we quash the demand, which are subject matter in this batch of writ petitions and direct the Municipal Corporation to issue fresh demand regarding levy and collection of the advertisement tax , as per the rules of Byelaws and when the demand is finalized by the Municipal Corporation, then only the same may be given to respondent No.3 contractor to recover it. As the controversy involved in the present case stands concluded by the judgment delivered by the Division Bench, this Court does not find any ground or reason to take a different view of the matter and accordingly the present Writ Petition stands dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta Soft Drinks Pvt. Ltd., Vs. Calcutta Municipal Corporation AIR 2007 Cal. 136 Aradhana Drinks & Beverages Pvt. Ltd., Vs. AIR 2012 P&H 20 State of Punjab Krishna Pictures Vs. Administration I.M.C. 1980 JLJ 530 Hutchison Vs. Bruhat Bangalore Mahanagar Palika ILR 2009 Karnataka 4255 Learned counsel for the respondent - Indore Municipal Corporation, Indore, at the outset, has drawn attention of this Court towards the judgment delivered by the Division Bench in the case of B harti Airtel Vs. S tate of Madhya Pradesh (W.P.No. 2296 / 2012, decided on 12/1/2015) and, therefore, the Writ Petition deserves to be dismissed. This Court has carefully gone through the judgment delivered B harti Airtel Vs. S tate of Madhya Pradesh (W.P.No. 2296 / 2012, decided on 12/1/2015) and the same reads as under : This order shall govern disposal of (1) Writ Petition No.2296/2012 (Bharti Airtel Limited v. The State of Madhya Pradesh & others), (2) Writ Petition No.2468/2012 (Idea Cellular Limited v. The State of Madhya Pradesh & others), (3) Writ Petition No.2725/2012 (Vodafone Essar Limited v. The State of Madhya Pradesh & others), (4) Writ Petition No.3446/2012 (Reliance Telecom Limited v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndore and its agents / contractors and also prayed for issuance of writ of prohibition, restraining respondents and its agents from threatening the petitioners for levy, collection and recovery of 'advertisement tax' and from removing the hoardings / sinage and other advertisements of the retailers of the petitioners. 3. The petitioners have also challenged Resolution No.167 dated 24.08.2011 and Resolution No.233 dated 13.10.2011 passed by the Mayor-in-Council as well as work order dated 20.10.2011 issued by respondent No.2 - Indore Municipal Corporation in favour of respondent No.3 - M/s. Shauryaditya Advertise and an agreement dated 20.10.2011 executed between respondent No.2 and respondent No.3 for collection of the 'advertisement tax'. 4. Section 132 of the Act of 1956 enumerates the taxes which can be imposed by the Corporation. A tax on advertisement other than the advertisements published in newspapers, is one of the taxes, which the Corporation can impose under the Act of 1956. The procedure for imposition of taxes is contained in Section 133 of the Act of 1956. Sub Section (1) of Section 133 of the Act of 1956 provides that the Corporation may, by a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r retained or displayed except with the permission of the Municipal Commissioner. 6. Permission how granted. - (1) Every person desiring to exhibit, erect, fix, retain or display advertisement shall apply in Form 'A' to the Municipal Commissioner not less than seven clear days before the advertisement is to be made, with full particulars of the matter to be advertised; Provided that the Municipal Commissioner may for reasons to be recorded in writing entertain an application at any time. (2) The Municipal Commissioner shall, within four days from the date of receipt of the application, intimate the applicant the amount of tax payable on the intended advertisement. (3) After the applicant has paid the tax, the application shall be considered and the Municipal Commissioner shall pass orders in Form 'B" permitting the exhibition or retention of the advertisement. (4) A duplicate copy of every advertisement to which permission has been accorded under Clause (3) shall be produced by the applicant at the Municipal Office and shall be sealed in token of the tax paid and permission granted. (7) Conditions of grant of permission. - (1) No advertisement shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously allowed to be put at the site. (e) The supports of all such hoardings shall be of steel or other metal or of sound quality of timber about 10 cm x 10 cm, thickness firmly in-bedded in the ground and suitably painted. (f) Before an advertisement hoarding is allowed to be erected at an approved site, the advertisers shall be required to submit to the Municipal Commissioner a copy of the design showing the size dimensions and the like of the hoarding and supports, and the design and colour scheme of the matter to be advertised and no advertisements shall be allowed as are not in harmony with the back ground and / or offered against good taste and public morals. (g) In the case of hoardings put up by the side or road bridges, the height of the supports will be adjusted as to make one uniform line, not higher than the embankment wall (railing) of the road bridge. (h) Any advertisement, board and the like allowed to be put up against railway station fencing and / or the railings round public buildings, shall be in level with the top of such fencing or railing and not project beyond the same. (i) All advertisement hoardings, cinema and poster boards and their supports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which such tax or fee is being imposed, class of persons or description of property to be taxed, the amount or rate of tax or fee being imposed, system of assessment and collection to be adopted and the date from which imposition of such tax or fee shall take effect; (b) in case of increase of rate of any tax or fee, the prevailing rate of such tax or fee, the proposed increased rate of such tax or fee and the date from which increase of rate of such tax or fees shall take effect. (3) The resolution, as passed, shall be conclusive evidence of the imposition of a new tax or fee; or increase of rate of any tax or fee, as the case may be: Provided that if the Corporation decides to have supplementary taxation during the financial year; it may do so from such date as the Corporation may resolve, subject to the provisions of this Act and subject to such limitation and conditions as may be prescribed by the State Government in this behalf. (4) Nothing contained in this section shall apply to tax mentioned in clause (a) of sub-section (1) of Section132, which shall be charged and levied in accordance with Section 135. 134. Recovery of Taxes.- A Municipal tax may be recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stress and sale of the movable property belonging to such person; or (ii) by attachment and sale of the immovable property belonging to him; Provided that, where any precautionary or other measures in respect of any such property have been taken by the Government for the recovery of any sum claimed by it, no proceedings shall be taken over continued under this chapter in respect of such property until the Government's claim has been paid off. (2) Where the property is within the limits of the City, the warrant shall be addressed to an officer of the Corporation and where the property is outside the limits to the Collector of the district concerned: Provided that the officer to whom the warrant is addressed under sub-section (2) or subsection (3) may endorse such warrant to a subordinate officer. (3) for every warrant issued under this section, fee shall be charged at the rates specified in the regulations and the said fee shall be included in the costs of recovery. 184. Appeals.- (1) Appeals against any notice of demand issued under sub section a(1) of section 174 may be made to the Appeal Committee constituted under section 403 and in the manner prescribed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evasion; (c) the date, place and manner of paying any tax or installment of tax payable under this Act and the person to whom it shall be paid; (d) the fees for notices of demand of any tax and the execution of warrants of distress and the rates to be charged for maintenance of any livestock distrained; and the persons authorized to receive payment of any sums so payable; (e) the manner in which the annual values of buildings and land shall be determined for the purposes of assessment; (23) Advertisement. - the exhibition or advertisements and hoardings and similar structures used for the purpose of advertisement; 430. Byelaws to be subject to sanction of Government.- (1) No byelaw made by he Corporation under this Act shall have any validity until it is confirmed by the Government. (2) Before sanctioning any such byelaw the Government may modify it. (3)The Government my cancel its confirmation of any such byelaw and thereupon the byelaws shall cease to have effect. 431. Publication of byelaws and rules in Gazette and effect of such publication.- All byelaws made and confirmed under this Act shall be published in the Gazette and shall thereupon hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition and recovery of the tax will be held even if an implied provision to that effect can be inferred. These principles are now well established K.T. Moopil Nair v. State of Kerala (AIR 1961 SC 552), Rai Ramkrishna v. State of Bihar (AIR 1963 SC 1667), Amalgamated Coalfields v. Janpad Sabha (AIR 1964 SC 1013 p 1021), Assistant Collector, C.E. v. N.T. Co. of India Limited (AIR 1972 SC 2563) and Roopchand v. K.U.M. Samiti, Raipur (1975 MPLJ 326). 5. We have earlier stated that till 18th August 1978 no bye--- laws had been made by the Corporation under Section 427 (3) for assessment and collection of the tax. Can it then be said that the tax was inoperative before that date because no machinery existed for its assessment and collection? In our opinion, the answer to this question must be given in the negative having regard to the provisions of Sections 173 to 175 of the Act which provide a machinery for recovery of Corporation claims including taxes and which contemplate a quasi-judicial procedure and also provide for an appeal. There sections in so far as relevant read as follows: - "173. Presentation of bill for taxes and other demands.- (1) When any amount declared by or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 174. It is implicit in the terms of Section 174 that if a person on whom the bill is served raises objections within fifteen days, the objections should be decided by the Commissioner in a quasi-judicial manner and it is only when the objections are over-ruled that a notice of demand can follow. The order of the Commissioner rejecting the objections and issuing a notice of demand can be challenged in appeal because the notice of demand is appealable under Section 184. Now in cases where there are separate bye-laws for assessment of tax made under Section 427 (3), the objections which a person can take under section 174 on presentation of a bill would be of a limited character. It would then not be open at this stage to challenge the assessment of tax. But in cases where there are no bye-laws providing for assessment of tax, the bill issued by the Commissioner under section 173 would be in the nature of provisional assessment of tax which can be challenged by raising objections under section 174. The objections in such a case will include also objections to assessment of tax and would be investigated judicially and if the objections are over ruled, the person concerned would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanding 'advertisement tax' with caution to remove boards. 13. Respondent No.3 has been awarded work for recovery of 'advertisement tax' for a period of five years and work order was issued on 20.10.2011. Before issuing work order, Resolution No.167 dated 24.08.2011 and Resolution No.233 dated 13.10.2011 were passed by Mayor-in-Council. As per work order, respondent No.3 is entitled to recover 'advertisement tax' on behalf of the Municipal Corporation, Indore. Clauses (2) and (3) of the agreement dated 20.10.2011 are relevant, which reads, as under: - 14. The contentions urged by the learned Senior Counsel for the petitioners is that respondent No.2 is not competent to pass a resolution granting contract for recovery of 'advertisement tax' purportedly under Section 189-A of the Act of 1956, particularly when the bye-laws dated 31.05.1978 made by the Administrator, Municipal Corporation, Indore for the purpose of 'advertisement tax' framed under Clauses (2), (3) & (23) of Section 427 read with Clause (1) of Section 442 of the Act of 1956 do not confer any such power on the Municipal Corporation, Indore. 15. In respect of challenge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied in accordance with the Byelaws of 1978 and not in any other manner. Section 189-A of the Act of 1956 would come into play only when there is a mandate in the byelaws providing for recovery of 'advertisement tax' through an auction. Unless, therefore, the Byelaws of 1978 are amended till that point of time, Section 189-A of the Act of 1956 will not come into play. He also drew our attention to the decision of the Gwalior Bench in the case of Gwalior Advertisers Association, Gwalior & others v. The State of Madhya Pradesh & others, Writ Petition No.767/1994 decided on 07.08.1996; the High Court in paragraph 5 has held, as under: - "5. Since the bye-laws do not permit recovery of tax through Contractor for installing hoardings for advertisement, the auction on the condition that contractor should recover the tax is violative of bye-laws. In such circumstances, action of the respondent - Corporation is contrary to byelaws framed under Section 427 of the Act of 1956. In such circumstances, Annexure P/6 and R/1 are quashed and respondents are directed to act strictly according to byelaws and they cannot recover the tax through auction unless the byelaws are amended. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal fund, the collection of amount of bid money, worked out on the actual collection of tax in earlier years, should be deemed to have been realized and credited. There may be occasions when the regular employees of the Corporation may not be able to realize the whole tax dues. Inefficiency or corruption may adversely affect tax collection, but by method of auction at least the amount of tax expected to be collected is realized in advance. Whee there is no ambiguity about the rate of tax and person from whom to be recovered, any method of collection can be adopted. Mode of collection by auction is not prohibited on the other hand, the provisions of the M.P. Municipalities Act impliedly and Rules expressly permit the same. The Scheme for collection of tax by auction is not unknown. The collection of Toll Tax by auction is not uncommon. The provisions of M.P. Municipalities Act, 1961 are reproduced below: "105. Credit of moneys to Municipal Fund.- (1) There shall be credited to the Municipal Fund - (a) all moneys received by or on behalf of the Council under the provisions of this Act or of any other law for the time being in force or under any contract; (b) the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the tax. Tax has to be collected through appropriate agency. The agency can be a permanent cadre of employees. The agency can also be temporary agents on whom is conferred the authority to collect the tax, however, of course, subject to the control of the sovereign or the local body. Under the bye-laws, what is intended is creation of such an agency. The agents cannot be expected to attend to the job without any remuneration. Where the employees collect the tax, they deposit the entire amount in the municipal fund and draw their pay. The same method could be followed under the scheme of auction. The successful bidder could be required to deposit the entire collection in the municipal fund and he may be separately paid for his exertion. Under the bye-laws, instead of depositing the entire amount and taking back the remuneration, the net amount is required to be deposited. Where the collection agency has to be remunerated, remuneration may be fixed on any reasonable basis including percentage or a lump sum. At the same time, the local body may secure guarantee of minimum collection. All these factors are taken into consideration in devising the mode of collection by auction. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2001 (1) MPLJ 368, it has been held in paragraphs No.9 and 10, as under: - "9. This Court had an occasion to consider the scope of section 358 (7) (m) of the Act in the case of Sindhi Sahiti Multipurpose Transport Co-operative Society Ltd. Bairagarh, Bhopal v. Municipal Council, Bhopal and another, reported in 1967 MPLJ 108. The question was also considered in the case of Nagar Palika, Bhind v. M.P. State Road Transport Corporation, reported in 1989 MPLJ 214 = 1989 JLJ 641. Thus, the Council is empowered to impose the fee as provided under the bye-laws. The fee cannot be enhanced by passing a resolution without amending the bye-laws. The bye-laws can be amended in the same manner as provided under Section 21 of the Madhya Pradesh General Clauses Act. 10. In the case of Kamla Prasad Khetan and another v. Union of India, reported in AIR 1957 SC 676, considering the scope of section 21 of General Clauses Act the Apex Court has held in para 15 that power to issue an order includes power to amend the order but this power is subject to a very important qualification and the qualification is contained in the words "exercisable in the like manner and subject to the like sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax is only with respondent No.2 under Sections 173 & 174 of the Act of 1956. Respondent No.2 is required to follow the procedure prescribed under Section 173 of the Act of 1956, and as per the procedure prescribed therein, they have to first serve a bill and give necessary details as are prescribed under that section and also give the necessary time to file objections, as prescribed, before such a step is taken. The issuance of an invoice by a private contractor is void, illegal and without jurisdiction. They submitted that the procedure prescribed under Sections 173 and 174 of the Act of 1956 has to be followed by the Commissioner of respondent No.2 and not by the private contractor. In support of the aforesaid contention, they have drawn our attention to paragraphs No.5, 6 and 7 of a Division Bench decision of this Court in the case of Vyapar Mandal Mandi, Morena v. State of MP & others reported in 2004 (2) MPLJ 482, which reads as under: - "5. Section 127 of the Act empowers the Municipal Council to impose tax under the Act. This section relates to imposition of tax specified in Sub-section (1) subject to any general or special order which the State Government may make in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is mandatory for the person, businessman, establishment and license holder under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam to collect terminal tax on the goods at the rate specified in the Schedule and shall deposit in the Municipal Treasury the amount of terminal tax collected during the last month on the goods exported from the Municipal limits through their shop, establishment alongwith return upon 10th day of every month. Thus, requirement of law is that every assessee mentioned in Rule 3 shall deposit the tax collected and submit his return on or before 10th day of every month. After return is filed, it will be scrutinised by the Authority under Rule 5, and if the Authority finds that some additional information is required, notice shall be given to the concerned assessee to furnish additional information and the assessee is required to furnish such information within a period of thirty days from the date of receipt of such notice. Rule 6 empowers the Municipal Authority to enter in the shop concerned, establishment or mandi to enquire into the information given in the return and may inspect the record if necessary. After this assessment, amount due is to be assessed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 164 the assessee has failed to pay the demanded dues within fifteen days, such sum with all cost of recovery may be recovered under a warrant in the form prescribed by Rules of 1996 by distress and sale of movable property belonging to such person, or by attachment and sale of the immovable property belonging to him. 7. Thus, power under Chapter VIII of the Act can be exercised by the Competent Authority and not by the contractor. We, therefore, hold that after final assessment if any sum is found due it will be collected through contractor but the contractor will not be empowered to recover the amount by coercion. If tax is not paid, then recovery should be made strictly in accordance with the Act as provided in Chapter VIII of the Act. Function of attachment and auction of movable and immovable property cannot be conferred upon the contractor and these functions can only be exercised by the Competent Authority empowered under the Act. The contractor can only ask for payment of tax due and he cannot take coercive method for recovery of tax. Contractor must approach the assessee establishment or firm between sunrise to sunset and furnish notice of demand. Assessee mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act. In fact the notices issued by the bank to the appellant are under Section 328, 328A of the Corporation Act. The reach, ambit and scope of these sections are quite different and they operate in different fields. They do not completely overlap. In the circumstances, it was appropriate for the Corporation to issue notices to the appellant either under Section 328 or under Section 328A of the Corporation Act and notice should not have been issued under both Sections for the same sign board. The Bombay Municipal Corporation Authorities seem to be in a state of doubt and hence the notices clearly do not specify under which section they propose to take action. As we have made it clear that in the present case the sign boards of ATM centers, which are not sky signs, are not covered under the provisions of Section 328 of the Corporation Act, the notices issued shall be deemed to have been issued under Section 328 A of the Corporation Act and the Corporation shall decide the question of advertisement under Section 328A of the Act after indicating the bank a fresh date of hearing. For the reasons stated above the appeal is allowed and judgment and order of the High Court is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution of India, no tax shall be levied or collected except by authority of law. The source of power is Section 132 (6) (l) of the Act of 1956. He has also drawn our attention to Sections 133, 134, 173, 174, 175, 184, 189-A, 427, 430 and 431 of the Act of 1956 and submitted that the constitutional mandate of Article 265 of the Constitution of India is comprehensive. The words used in Article 265 are 'levy' and 'collect'. In taxing statute, the words 'levy' and 'collect' are not synonymous terms. While the word 'levy' would mean assessment or charging or imposing tax; the word 'collect' in Article 265 of the Constitution of India would mean physical realization of the tax, which levied or imposed. Collection of tax is normally a stage subsequent to the levy of the same. The enforcement of levy could only mean realization of the tax imposed or demanded. He drew our attention to the decision of the Apex Court in the case of M/s. Somaiya Organics (India) Limited v. State of Uttar Pradesh reported in AIR 2001 SC 1723; in which the Apex Court has in paragraph No.30 held, as under: - "30. Reading the two paragraphs 89 and 90 toge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there should be quasi judicial procedure for assessment and quasi judicial procedure for its recovery. 30. Learned Senior Counsel for the petitioners have contended that the Division Bench of Principal Seat of Madhya Pradesh High Court at Jabalpur in the case of Shri Krishna Pictures, Indore & others v. Administrator, Indore Municipal Corporation & another (supra) while upholding imposition of 'advertisement tax' has held that the provision of Section 173 of the Act of 1956 require the Municipal Commissioner to send a bill to enable the concerned person to file objection, if any, on receiving such a bill. The aforesaid provision was held a sufficient quasi judicial process for assessment, because the decision of the Commissioner was open to appeal under Section 184 of the Act of 1956. It is also pointed out that at the time of passing of the aforesaid judgment, Section 189-A of the Act of 1956 was not on the statute book, which was inserted only by Madhya Pradesh Act No.16 of 1994, published in MP Gazette (Extraordinary) dated 30th May, 1994. This provision permits a corporation to lease out the recovery of tax, but does not dispense with the requirement of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 134 of the Act of 1956. The power of coercive recovery conferred by sub-sections (3) and (4) of Section 134 of the Act of 1956 are sovereign powers and cannot be delegated by a corporation to a contractor or a private person. Such a person can only recover such a tax in response to the demand raised by him only by filing a civil suit. The powers conferred by sub-sections (3) (4) of Section 134 of the Act of 1956 by attachment and sale are conferred by statute on corporation and not on any other person. Delegation of such powers by corporation would be absolutely void and violative of the constitutional guarantees provided under Article 265 of the Constitution and would result in negation of rule of law. In no event, Section 189-A of the Act of 1956, which permits leasing out "recovery of any tax" can be read or construed so as to empower a private contractor to make assessment of 'advertisement tax' at his sweet will and to recover on his own by attaching and selling movable and immovable properties of citizens at his own choice with no remedy to the affected citizen. Such a situation would result in total anarchy. 34. Per contra, Shri A.K. Sethi, learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the provisions of Section 134 (1) of the Act of 1956. Number of petitioners have not raised any objection against the aforesaid demand, and therefore, they cannot make any submissions in respect of the same, and therefore, their contention that respondent No.3 is taking coercive action against them is contrary to the requirement of law. 35. To counter this submission of Shri A.K. Sethi, learned Senior Counsel, Shri B.L. Pavecha, learned Senior Counsel, who is appearing in Writ Petition No.2468/2012 has submitted that immediately after receipt of demand notice dated 14.01.2012 (Annexure P/1), reply was sent on 18.02.2012 vide Annexure P/4 and protest notice was also issued on 01.03.2012 (Annexure P/5). 36. Though from these contentions, it can be said that in some of the matters, no protest notice or objection was raised, but in maximum cases protest letter / objection was raised by the individuals and the Municipal, without deciding their objections, permitted the contractor to recover 'advertisement tax' from them. 37. Shri A.K. Sethi also drew our attention to clauses 4, 5, 6 and 7 of the Byelaws of 1978, which have been reproduced herein above in the prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the law and as per decision of the Appellate Authority, challenged before any other forum unless the contractor can be directed to recover the amount by due process of law. Since the demand has not been raised, in accordance with the provisions laid down under the byelaws. 41. It is contended by the petitioners that since the mode of auction is not provided, consequently the adoption of this auction process is illegal and the contractor cannot be granted the contract, since he has been appointed on the basis of the auction carried out by the Municipal Corporation. The aforesaid contention is misplaced. The Full Bench of MP High Court in the case of Sindhi Sahiti Multi Purpose & Transport Co-operative Society Limited, Bhopal v. State of MP & another (supra) has dealt with the issue in great detail and decided against the petitioners. 42. Under Clause 5 of the Byelaws, no advertisement shall be exhibited, erected or fixed etc. except with the permission of the Municipal Corporation. Clause 6 lays down a particular form 'A' under which the application seeking permission of the Municipal Corporation is to be made. The Municipal Corporation is required to intimate the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganics (India) Limited v. State of Uttar Pradesh (supra), that levy, collection and physical realization of the tax levied or imposed are not synonymous terms. Collection of tax is subsequent to the levy of the same. The enforcement of levy could only man the realization of the tax imposed or demanded. There cannot be any dispute to the said proposition of law, as laid down by the Apex Court. Here, there exists a provision under the Byelaws, as stated herein before in Clauses 4, 5 and 6 and as such, the levy is to be imposed by the Municipal Corporation and can be collected and recovered by taking recourse to Section 189-A of the Act of 1956. But, in this case, the difficulty is that nothing has been produced in the record nor any pleading has been made by the Municipal Corporation that they followed the aforesaid clause, i.e. invited application in Form 'A'; determined the intended tax payable; and after the consideration, passed an order in Form 'B'. Consideration means objection, if any, raised or things analogous to it. This procedure has not been complied with and the notices have been issued directly for recovery of the amount, without the Municipal Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough an agency, which necessarily has to work under the authority of the local body, cannot contravene the provisions of Article 265 of the Constitution. We are unable to agree that this mode of collection is contrary to the Act of 1956 and the intention of the legislature. We are also unable to agree that the contractor and the staff are beyond the restrictions of law. We, therefore, reject the contention of the petitioners and uphold the mode of collection challenged by the petitioners. 47. Reading of Section 133 of the Act of 1956 will show that it merely deals with the procedure for imposition of tax. The procedure for assessment, collection, remission, refund and recovery of taxes, cesses etc. is provided by the byelaws framed by the Municipal Corporation under Section 427 (3) of the Act of 1956. 48. In the case in hands, Byelaws have been framed for assessment and collection of tax under Section 427 (3) of the Act of 1956; and thus, the provisions of Sections 173 and 174 of the Act of 1956 would not be applicable. In the case of Shri Krishna Pictures, Indore & others v. Administrator, Indore Municipal Corporation & another (supra), a Division Bench has held that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to dispose of all the writ petitions and contempt case by quashing and setting aside the demand raised by respondent No.2 - Municipal Corporation, including all consequential action and notices based on the order of the Municipal Corporation, and instead relegate them before the concerned Competent Authority of the respondent No.2 - Municipal Corporation to re-examine the issue afresh in the light of the observations made hitherto. 51. Accordingly, all the writ petitions are allowed in part and are disposed of on the above terms. 52. No order as to costs. This Court is of the considered opinion that all the grounds raised in the present Writ Petition have been answered by the Division Bench and imposition of entertainment tax by the Corporation through an agency M/s. Shouaditya Advertisement has been upheld. The same Company is also a respondent in the present Writ Petition. In the light of the aforesaid, as the controversy involved in the present case stands concluded by the judgment delivered by the Division Bench, this Court does not find any ground or reason to take a different view of the matter and accordingly the present Writ Petition stands dismissed. In other c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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