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HIGH COURT OF CALCUTTA
Bhaskar Bhattacharya, J.
Shaw Wallace & Co. Ltd.
Vs.
Calcutta Municipal Corporation & Ors.
W.P. No. 471 of 2002
Decided on : May 23, 2002
CALCUTTA MUNICIPAL CORPORATION ACT - ASSESSMENT - SECTION 188(3), 189(5) - RULES 9(2), 10(3) - SERVICE OF COPY OF ORDER - INTERPRETATION - APPLICABILITY OF DOCTRINE OF STARE DECISIS - COPY OF ORDER TO BE SUPPLIED FREE OF COSTS - CERTIFIED COPY NOT REQUIRED - LONG STANDING PRACTICE OF NOT SUPPLYING COPY OF ORDER CANNOT OVERRIDE MANDATORY REQUIREMENT OF LAW - ENHANCED TAX DEMAND BEFORE SERVICE OF COPY OF ORDER IS ILLEGAL - ASSESSEE ENTITLED TO CHALLENGE DECISION BY APPEALING TO TRIBUNAL WITHIN 45 DAYS AFTER FORMAL SERVICE OF COPY OF ORDER.
Fact of the Case:
The petitioner, an assessee, challenged the purported assessment order and the consequent fresh consolidated bills issued by the Calcutta Municipal Corporation. The petitioner contended that the copy of the order passed by the Hearing Officer after determining the objection had not been served, and therefore, the demand for payment of tax at the enhanced rate was illegal. The Corporation, on the other hand, argued that the petitioner had already received a copy of the order in the form of a communication indicating the valuation of the premises arrived at after determination of the objection, and that this was sufficient compliance with the Act and Rules.
Finding of the Court:
The Court held that the communication issued by the Corporation, which only indicated the valuation of the premises, did not constitute a copy of the order as required by section 188(3) of the Act and Rule 9(2) of the Rules. The Court found that the Rules specifically required the Municipal Commissioner to supply a copy of the order free of costs to the person filing the objection, and that the assessee could not effectively prefer an appeal without receiving the copy of the order.
Issues: 1. Whether the communication issued by the Corporation indicating the valuation of the premises constituted a copy of the order as required by the Act and Rules? 2. Whether the assessee was entitled to a copy of the order before being required to pay tax at the enhanced rate? 3. Whether the long-standing practice of the Corporation of not supplying a copy of the order could override the mandatory requirement of law?
Ratio Decidendi: 1. The Court interpreted section 188(3) of the Act and Rule 9(2) of the Rules to mean that the Municipal Commissioner was required to supply a true copy of the order passed by the Hearing Officer to the person filing the objection, free of costs. 2. The Court held that the assessee was entitled to receive a copy of the order before being required to pay tax at the enhanced rate, as the right to appeal against the determination of the objection accrued only upon service of the copy of the order. 3. The Court rejected the Corporation's argument that its long-standing practice of not supplying a copy of the order could override the mandatory requirement of law, stating that such practice was a flagrant violation of the law.
Final Decision: The Court quashed the fresh consolidated bills issued by the Corporation and directed the Corporation to supply a true copy of the order to the petitioner. The Court also held that the petitioner would be entitled to challenge the decision by preferring an appeal before the Tribunal within 45 days after the formal service of the copy of the order.
Bhaskar Bhattacharya, J.: By this writ application an assessee has challenged the purported assessment order being Annexure P-5 and the consequent fresh consolidated bills being Annexures P-6 and P-7 and has prayed for reassessment of petitioner's building.
2. Mr. Mukherjee, the learned advocate appearing on behalf of the Calcutta Municipal Corporation has taken a preliminary objection as regards maintainability of the instant writ application. Mr. Mukherjee contends that the order of assessment being appealable before the Tribunal constituted under section 189 of the Calcutta Municipal Corporation Act, 1980 ("Act"), this Court should not entertain this writ application. Mr. Mukherjee further submits that Annexures P-6 and P-7, the fresh consolidated bills were issued in the month of October 2001 whereas the instant writ application has been filed on March 7, 2002 long after the expiry of the period of limitation prescribed in the Act for preferring appeal against the order of assessment.
3. Mr. Bhattacharjee, the learned counsel appearing on behalf of the petitioner has seriously disputed the aforesaid contention of Mr. Mukherjee and has contended that right to prefer appeal against order of assessment passed by the Hearing Officer after deciding objections given by the petitioner. According to Mr. Bhattacharjee, by Annexure P-5 only the figure arrived at after determination under section 188(2) of the Act has been communicated but the copy of the order in reaching the decision has not yet been served. Mr. Bhattacharjee contends that before the service of copy of order as enjoined under section 188(3) of the Act, the Corporation cannot demand payment of the tax at the enhanced rate. Mr. Bhattacharjee thus contends that so long the copy of the actual order passed by the Hearing Officer in coming to the conclusion as regards fresh valuation is not supplied, the petitioner does not get any right to prefer appeal and as such the subsequent demands through the Annexures P-6 and P-7 on the basis of Annexure P-5 should also be quashed.
4. To appreciate the disputes involved in this writ application the following sections of the Act and the Rules of the Calcutta Municipal Corporation (Taxation) Rules, 1987 ("Rules") are relevant and those are quoted below:-
"Section 188. Hearing of objections.––(1) Objections filed under section 186 shall be entered in a register maintained for the purpose in such manner as may be prescribed.
(2) On that date, time and place specified under sub-section (3) or sub-section (4) of section 184 and after giving the person filing the objections an opportunity of being heard, either in person or through an authorised agent, the officer appointed under section 187 shall determine the objections.
(3) When an objection has been determined, the order in this behalf shall be recorded in the register maintained under sub-section (1) with the date, and a copy of the order shall be supplied within thirty days thereof to the person filing the objection in such form and manner as may be prescribed.
(4) The procedure for hearing and disposal of objections shall be such as may be prescribed.
(5) The valuation fixed after determination of objection under this section shall take effect from the quarter in which such valuation would have taken effect and shall continue to remain in force during the period such valuation would have remained in force, had no objections been filed.
Section 189. Appeal before the Municipal Assessment Tribunal.––
(1) ................................
(2).................................
(2A)..............................
(3).................................
(4).................................
(5) Any owner or person liable to payment of consolidated rate may, if dissatisfied with the determination of objection under section 188 appeal to the Tribunal:
Provided that such appeal shall be presented to the Tribunal within forty five days from the date of service of a copy of the order under section 188 an
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