Back
2018 Supreme(Cal) 431
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
I.P. Mukerji, Md. Mumtaz Khan, JJ.
The Calcutta Gujarati Education Society & Anr. – Petitioners
Versus
The Kolkata Municipal Corporation & Ors. – Respondents
APO 412 of 2015, WP 668 of 2011 With APO 470 of 2015, WP 668 of 2011
Decided On : 26-04-2018
For the Petitioner: A. K. Banerjee, Sr. Adv., B. Mukherjee, G. C. Das, S. Mukherjee
For the Respondent: Sakya Sen, Arindam Banerjee, Subhadeep Sen
The commercial surcharge as leviable and chargeable immediately prior to the coming into force of the Kolkata Municipal Corporation (Amendment) Act, 2006 continued to be leviable and chargeable under Section 232-A, applied with retrospective effect.
Headnote:
Property Tax - Kolkata Municipal Corporation (Amendment) Act, 2006 - Section 171, 174, 175, 179, 180, 182A, 184, 185, 186, 189, 190, 191, 193, 197, 215, 217, 221A - The court held that the commercial surcharge as leviable and chargeable immediately prior to the coming into force of the Kolkata Municipal Corporation (Amendment) Act, 2006 continued to be leviable and chargeable under Section 232-A, applied with retrospective effect. The appeal by the Calcutta Gujrati Education Society was dismissed and the appeal by the Kolkata Municipal Corporation was allowed.
Fact of the Case:
The Calcutta Gujarati Education Society contested the authority of the Kolkata Municipal Corporation to demand surcharge on property tax from 1st May, 2007 till 1st January, 2012. The key issue was whether the levy of surcharge as provided in Section 171(4) could not be made during this period.
Finding of the Court:
The court found that the commercial surcharge as leviable and chargeable immediately prior to the coming into force of the Kolkata Municipal Corporation (Amendment) Act, 2006 continued to be leviable and chargeable under Section 232-A, applied with retrospective effect. The appeal by the Calcutta Gujrati Education Society was dismissed and the appeal by the Kolkata Municipal Corporation was allowed.
Issues: The key issue was whether the levy of surcharge as provided in Section 171(4) could not be made during the period from 1st May, 2007 to 31st December, 2011.
Ratio Decidendi: The court interpreted Section 232-A and found that the legislature intended the continuation of the state of affairs existing at the time of the enactment of the 2006 Amendment Act, and therefore, the commercial surcharge continued to be leviable and chargeable under Section 232-A with retrospective effect.
Final Decision: The appeal by the Calcutta Gujrati Education Society was dismissed and the appeal by the Kolkata Municipal Corporation was allowed.
I.P. Mukerji, J.
1. The reference to the writ petitioner in this judgment will mean reference to the Calcutta Gujarati Education Society. The appellant No.1 in the appeal APO 412 of 2015, which is the writ petitioner, is an assessee for property tax on premises no. 29, Pollock Street, Kolkata-1.
2. They question the authority of the Kolkata Municipal Corporation (hereinafter referred to as the respondent Corporation) to demand surcharge on property tax on and from 1st May, 2007 till 1st January, 2012. The writ petitioner contends that with effect from 1st May, 2007, Section 171 (4) of the said Act which provided for imposition of this surcharge was repealed. Section 232A was added in 2011 with effect from 1st January, 2012. Section 232A is very important and is set out below:
“Certain provisions applicable prior to enactment of the Kolkata Municipal Corporation (Amendment Act, 2006 shall continue to be in force. – Notwithstanding anything contained in this Act, the provision of section 171, sub-section (1) of Section 174, Sections 175, 179, 180, 182A, 184, 185, 186, 189, 190, 191, 193, 197, 215, 217 and 221A which were in force immediately prior to the commencement of the of the Kolkata Municipal Corporation (Amendment) Act, 2006 (West Ben. XXXII of 2006), shall continue to be in force until final publication of the scheme under sub-Section 1 of section 174 of this Act as amended by the Kolkata Municipal Corporation (Amendment) Act, 2006:
Provided that the preparatory works under sub-section (1) of section 174 of this Act as amended by the Kolkata Municipal Corporation (Amendment) Act, 2006 leading to final publication of the scheme shall continue.”
3. The writ petitioner says that the annual valuation could be revised but the respondent Corporation did not have the right to levy surcharge on the property for the period 1st May, 2007 to 31st December, 2011. According to the respondent Corporation Section 171 continued till 31st December, 2011 and thereafter. The respondent Corporation could claim surcharge for this period.
4. In short the argument is that the amendment has retrospective effect.
5. Section 232A starts with a non-obstante clause to the effect that “Notwithstanding anything contained in this Act, the provision of section 171, sub-section (1) of Section 174, Sections 175, 179, 180, 182A, 184, 185, 186, 189, 190, 191, 193, 197, 215, 217 and 221A which were in force immediately prior to the commencement of the of the Kolkata Municipal Corporation (Amendment) Act, 2006 (West Ben. XXXII of 2006), shall continue to be in force until final publication of the scheme under sub-Section 1 of section 174 of this Act as amended by the Kolkata Municipal Corporation (Amendment) Act, 2006:
Provided that the preparatory works under sub-section (1) of section 174 of this Act as amended by the Kolkata Municipal Corporation (Amendment) Act, 2006 leading to final publication of the scheme shall continue.”
6. The 2006 amendment never became effective as the respondent Corporation could not frame the scheme to implement it.
7. Learned advocate Mr. Biswajit Mukherjee submitted that the amendment to the Act made on 1st January, 2012 had retrospective effect. Mr. Mukherjee also tried to argue that even it was assumed, without making any admission that the writ petitioner was entitled to refund of the commercial surcharge paid in this intervening period between 1st May, 2007 and 1st January, 2012 they were not entitled to it, for the reason that they had passed on the burden of this tax to third parties, like students by realising it from them.
8. The Hon’ble 1st Court had made a very detailed analysis of the submissions made on behalf of the respective parties. It does not appear from the narration that these submissions were ever made before the trial court. In those circumstances, we did not allow this plea which is a mixed question of law and fact to be taken for the first time at the appellate stage.
9. The following findings have been
