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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. SANKLECHA & S.C. GUPTE, JJ.
Chennai Network Infrastructure Ltd. & Anr. - Petitioners
Vs.
The Kalyan Dombivli Municipal Corporation & Ors. - Respondents
WRIT PETITION NO. 1275 OF 2017
Decided On : 18-04-2017
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.
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, be challenged by way of an appeal under Section 406. Every levy, which is not supported by law, can always be termed as wanting in authority or jurisdiction. There is no reason why it should not be left to the appellate forum under the taxing statute. The Corporation in the present case has the requisite power to tax the subject if it finds that the requisite conditions of the taxing provision are satisfied. The grievance really is that the authority has come to an erroneous finding as to the existence of these conditions. That ordinarily should be a subject-matter of a statutory appeal provided for by the Legislature.
Maharashtra Municipal Corporation Act, 1949 - Section 127-Levy of property tax.-Since Mobile towers are exigible to property tax hence levy of property tax on it by corporation not improper.
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 v. 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.
Maharashtra Municipal Corporation Act, 1949 - Sections 267-A and 406-Constitution of India, Article 227- Imposition of Penalty under Section 267-A.-Order impositing of penalty under Section 267-A of Act for illegal construction is included in expression "Tax" and is appealable.
That penalty charged under Section 267-A is appealable. Court sees no reason not to relegate the aggrieved assessee to the statutory appellate forum. Court has already discussed this aspect in the order above whilst dealing with conservancy tax under Section 131 of the Act. all contentions of the petitioner on merits of the levy, some of which have been noted above, are open to it, to be urged before the appellate forum. Court express no opinion on them.
Gupte S.C. J.
This petition, filed under Article 227 of the Constitution of India, challenges demand notices including a final demand notice concerning property tax in respect of the Petitioners' cellular sites situate within the municipal limits of the Respondent Corporation.
2. The Petitioners carry on business inter alia of providing infrastructure services including installation and maintenance of mobile towers and passive infrastructure therein. The Petitioners have installed and have been maintaining several cellular sites within the limits of Respondent No.1 municipal corporation. Respondent No.1 has raised demand notices for the Assessment Years 2015-16 and 2016-17, respectively, for sums of Rs.3,75,33,415/- and Rs.1,55,35,314/- 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 in respect of items (i), (iv) and (v). The Petitioners state that they shall pursue their challenge in respect of items (ii) and (iii) before the appellate forum under Section 406 of the Act. The statement is accepted. All rights and contentions of the parties on merits of these items are kept open.
5. Let us now take up the three individual items pressed before us. The first item is conservancy tax levied by Respondent No.1. Section 131 of the Act provides for such levy. The section is in the following terms :
“131. Conservancy tax or sewerage tax and sewerage benefit tax on what premises to be levied.
(1) The conservancy tax or sewerage tax shall be levied only in respect of premises,—
(a) situated in any portion of the City in which, public notice has been given by the Commissioner that the collection, removal and, disposal of all excrementious and polluted matter from privies, urinals and cesspools, will be undertaken by municipal agency; or
(b) in which, wherever situate, there is a privy, water closet, cesspool, urinal, bathing place or cooking place connected by a drain with a municipal drain:
Provided that the said tax shall not be levied in respect of any premises situate in any portion of the City specified in clause (a), in or upon which, in the opinion of the Commissioner, no such matter as aforesaid accumulates or is deposited.
(2) Premises in respect of which the Commissioner has directed that a separate water closet, privy or urinal need not be provided shall be deemed to be liable to the levy of conservancy tax if, but for such direction, the tax would be leviable in respect thereof.
(3) The sewerage benefit tax shall be levied in respect of all premises situated in the City.”
Whereas conservancy tax (or sewerage tax) can be claimed only in respect of premises which are covered under clause (a) or clause (b) of subsection (1) (in case of clause (a) subject to the proviso to subsection (1), conservancy benefit tax (or sewerage benefit tax) can be levied in respect of all premises situated in the city. Clause (a) req
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