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Pacific Marine Services LLP Thru Partner Sandip Mansukhlal Shah v/s Bhavnagar Municipal Corporation Thru The Commissioner

    R/Special Civil Application Nos. 2853, 4250 of 2022, 9570, 9655 of 2021
    Decided On, 25 April 2022
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE A.Y. KOGJE
    For the Petitioner: Chintan K. Gandhi(8600), Advocate. For the Respondent: HS. Munshaw(495), Advocate.


Judgment Text
Oral Judgment

1. RULE. Learned Advocate Mr. H. S. Munshaw waives service of rule on behalf of the respondent.

2. These group of petitions is with regard to the property tax bill issued by the respondent-Corporation to the respective petitioners. As the issue raised by the parties is identical, though in different facts, at request of the parties concerned, these petitions are taken up for joint hearing and disposal. Facts are recorded from the lead petition being Special Civil Application No.2853 of 2022.

3. This petition under Article226 of the Constitution of India is filed for quashing and setting aside the assessment / impugned property tax bill No.0285366 dated 23032021 and Bill No.0234023 dated 13102021.

4. It is the case of the petitioner that issuance of the property tax bill and the demand notice at Annexure-A and Annexure-B are in violation of Rule15( 2), 20(2) and 41 of the Rules under the G.P.M.C. Act. It is the case that the respondent-Corporation has issued the bill by levying the property tax with retrospective effect. It is the case that such retrospective effect is applied on the ground that subsequently from the year 2013, new policy for assessment on the basis of carpet area was introduced. It is the case of the petitioners that the petitioners have been paying tax as per the bills raised and were never defaulters in the payment of taxes.

5. In the present case, the property in question was transferred to the petitioner under saledeed dated 26121988 and thereafter, the petitioner has become owner of the property under the registered saledeed dated 10112020 and the entire property which included constructed portion and open land, has been given on rent to the G.S.T. Department.

6. Learned Advocate for the petitioners submitted that bill dated 23032021 for the first time was issued by the respondent-Corporation to the tune of Rs.10,42,861/for the part of the plot being plot no.76B1 and another bifurcated bill for the current year being 20202021 for an amount of Rs.1,34,563/, meaning thereby for the period between 2013 to 2020, the tax levied was to the tune of Rs.9,08,298/.

7. Learned Advocate for the petitioners has drawn attention of this Court to the bills in question at Annexure-A, which is dated 23032021, wherein the bill is shown to be covering two parts, outstanding for the period between April2013 to March2020, for which an amount of Rs.9,08,298/is shown to be outstanding. It is submitted that this portion of the bill also included an amount of Rs.9,462/towards the streetlight tax. According to the petitioners, issue pertaining to the streetlight tax was introduced only in the year 2020, wherein the Government Resolution dated 31032020 has permitted levy of streetlight tax so far as the Bhavnagar Municipal Corporation is concerned. Despite this, for the whole period from 2013, the component of streetlight tax is also introduced in the bill of the petitioner. This is only one anomaly that the petitioner has pointed out. Even otherwise according to the petitioner, the issuance of demand notice and the bills simultaneously, as is indicated at Annexure-A, is not in accordance with the law, as there is a period of 15 days provided for in the demand notice, which in the impugned notice, does not appear to be given to the petitioner at all.

8. Learned Advocate for the petitioners has referred to and relied upon the decision of this Court passed in Special Civil Application No.10272 of 2021 dated 20012022, wherein in the identical facts, the Court had quashed and set aside the bill and had directed the respondent-Corporation to issue fresh bill in accordance with the law, giving an opportunity as provided.

9. As against this, learned Advocate for the respondent-Corporation has opposed the petition by referring to the Affidavit in reply on behalf of the respondent-Corporation and submitted that it was responsibility of the assessee to disclose to the Corporation with true and correct facts, as in the instant case, open plot which was also part of the Agreement with the G.S.T. Department, was excluded from tax for the period between 2009 to 2013, for which the petitioner was liable to make payment for the tax.

10. Learned Advocate for the respondent-Corporation also submitted that the assessment was required to be made when the new method of assessment was introduced by adopting method based on the carpet area assessment. Effect was given from 01042013 and hence, bill at Annexure-A has been issued. It is also submitted that the petitioner has an alternative statutory remedy by way of an Appeal and therefore, grievance of the petitioner in the writ petition, may not be entertained.

11.Having considered the rival submissions of the parties and having perused the documents on record, it appears that the bill dated 23032021 would indicate the outstanding for period between April2013 to March2020, for which the assessment recorded is of Rs.9,08,298/, while current bill is to the tune of Rs.1,34,563/. The bill at Annexure-A would indicate that there is also the demand notice along with the bill and therefore, as per the requirement, period of 15 days is not satisfied. Another bill is for the period between 01042009 to 31032013. Both the bills which are subject matter of challenge are not preceded with the special notice despite the fact that the bill contents component of retrospective period; first period between 01042009 to 31032013 and thereafter, period between 2013 to 2020.

12. This Court has already taken a view based on the view of the decision of Division Bench this Court passed in Special Civil Application No.10272 of 2021 dated 20012022, wherein this Court in Para14 and Para15, has held as under:

“14. The Court is not inclined to examine the issue any further, as short point is raised with regards to noncompliance with the requirements of law before issuing of bill at enhaced rate. The taxation rules provided for under Chapter8 of the Gujarat Municipal Corporation Act more particularly, Rule 15(2) & 20(2) of the Act provides that wherever there is amendment which has effect of imposing on any person, any liability for the payment of property tax, which has the effect of increasing retable value of the premises, a special written notice, as provided under Rule 15(2) is to be issued by the Commissioner and procedure laid down as per the Rules 16, 17 & 18 are required to be followed. Rule 15(2) provides for in case of any premises in which the ratable value of any premises has been increased, the Commissioner, after issuing a publ notice under Rule15(1) give a special notice to the owner or occupier of the said premises specifying the nature of such entry and informing, but any complaint against such increase will be received at the office within a period of 15 days from the service of such special notice. The statute therefore provide categoric procedure laid down, which is required to be strictly followed considering the fact that the statute relates to taxation. The submission of learned advocate for the corporation of issuance of notice at Annexure-G, in the opinion of the Court, is not sufficient to substitute the requirement of Rule 20(2) and 15(2) of the Gujarat Municipal Corporation Act.

15. In view of aforesaid, the Court is inclined to adopt the methodology, as laid down by the of Division Bench of this Court in Special Civil Application No.5650 of 2018 by passing order dated 29.06.2018 and quashed and aside the impugned tax bill. The relevant paragraph of the said order reads as under:

“ 3.0. Having heard the learned advocates for the respective parties and without further entering into the larger question on merits whether there was any intimation by the petitioner with respect to the commercial use or not on the ground that the time which was required to be given while issuing special notice i.e. 15 days time was not given on the aforesaid ground alone and with a liberty in favour of the respondent Corporation to pass appropriate order afresh after following due procedure as required under the provision of the Taxation Rules, the impugned bill as well as demand deserves to be quashed and set aside. This Court is conscious of the fact the against the bill as such normally remedy would to prefer appeal. However, the aforesaid are undisputed facts in the peculiar facts and circumstances of the case and considering the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors reported in (1998) 8 SCC 1, present petition is entertained.”

13. Considering the facts of this cases, the Court deems it fit to adopt the same methodology, wherein on the ground as mentioned herein above that is to say lack of special notice preceding the bill, impugned notice and demand notice are hereby quashed and set aside. The Corporation is at liberty to issue fresh bill / demand notice in accordance with law after following the provisions of law and affording an opportunity of hearing to the petitioners. All the contentions available for the both the parties are kept open. The respondent-Corporation would consider the r

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epresentation made in response to such fresh bill / demand notice in accordance with the law and on merits. At request of learned Advocate for the petitioner, it is recorded that the Corporation may issue separate bill for the current year so as to enable the petitioner, if they desire to avail the benefit of rebate, as may be available under the Scheme, which is reportedly operating at this stage. Wherever the properties are sealed on account of the non-payment of tax, it will be open for the petitioners to separately make representation before the respondent-Corporation, who will take a decision, subject to making the payment with regard to demand. The Commissioner may issue fresh notice in each of these matters on or before 15052022. The proceedings in this connection may be concluded as expeditiously as possible preferable before 30062022. 14. In view of the aforesaid, the petitions stand allowed to the aforesaid extent. Rule is made absolute with no order as to costs. Direct service is permitted.
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