Telangana High Court
M/S.Opulentus Overseas Careers ... vs The Commissioner on 20 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CIVIL MISCELLANEOUS SECOND APPEAL No.2 of 2023
JUDGMENT:
This Second appeal is filed by the appellant aggrieved by the judgment dated 04.11.2022 in M.A.No.102 of 2022 on the file of the Chief Judge, City Small Causes Court, Hyderabad.
2. The appellant filed M.A.No.102 of 2022 challenging the tax demand notice dated 04.03.2022 issued by the respondent for a sum of Rs.20,69,770/-, which included arrears of Rs.10,68,398/-, current year demand of Rs.3,02,662/-, interest on arrears of Rs.6,62,386/- and current year interest of Rs.36,324/-.
3. The contention of the petitioner - appellant was that the appellant was a company involved in the business of providing secretarial services to the interested candidates by processing their applications / VISAs through concerned country's embassy / high commission for migration to other countries. The appellant established a branch in Hyderabad City and purchased Unit No.G1 in the entire ground floor of the building "Apurupa PCH", Hyderabad admeasuring 5675 square feet including common area together with 163.948 square yards of undivided share of land out of total extent of land admeasuring 806.58 square yards bearing Municipal No.8-2-293/82/A/467/GF 2 Dr.GRR, J cmsa_2_2023 constructed on Plot No.467, Road No.36, Survey Nos.120 and 120/1 of Hakimpet Village, forming part of Jubilee Hills Co-operative House Building Society Limited Layout, by virtue of registered sale deed document No.2443 of 2017 dated 27.04.2017. The petitioner was yet to make an application before the respondent - Greater Hyderabad Municipal Corporation (for short "Corporation") for mutation of property in his name in the records. After purchasing the property by the appellant, the property tax was enhanced to Rs.3,02,662/- . The respondent Corporation served a demand notice dated 04.03.2022, received by the appellant on 24.05.2022 issued under Section 268 of the HMC Act. In the said notice, the respondent Corporation demanded the appellant to pay a sum of Rs.20,69,770/- (arrears of Rs.10,68,398/-, current year demand of Rs.3,02,662/-, interest on arrears of Rs.6,62,386/- and current year interest of Rs..36,324/-). The respondent Corporation under the said notice of demand was claiming property tax beyond three years from the appellant. The respondent Corporation was not having any right to claim property tax beyond three years.
4. On considering the contentions of both the petitioner - appellant as well as the respondent - Corporation, the learned Chief Judge, City Small Causes Court, Hyderabad dismissed the appeal observing that the appellant did not choose to prefer the appeal within the limitation period, as the demand notice 3 Dr.GRR, J cmsa_2_2023 was dated 04.03.2022, but the appeal was filed on 06.06.2022. As such, the same was barred by limitation.
5. The learned Judge by placing reliance upon the judgment of this Court in CMSA.Nos.5 to 9 of 2022 dated 28.07.2022, wherein it was held that, in view of Section 278-A of the GHMC Act, 1955, the respondent Corporation have right to recover the amount within nine (09) years under the amended provision, which came into force with effect from 05.08.2013 observed that the respondent Corporation has the right to recover the arrears for a period of nine years and dismissed the appeal.
6. Aggrieved by the said observation of the learned Chief Judge, City Small Causes Court, Hyderabad, the appellant preferred this appeal raising the following substantial question of law:
i) The impugned notice dated 04.03.2022 was served on the appellant on 24.05.2022. While receiving the said notice, the appellant clearly endorsed that "received on 24.05.2022". The lower court without appreciating the same and assuming the said notice was served on 04.03.2022 itself, dismissed the same as "the appeal is not filed within limitation.".
7. Heard the learned counsel for the appellant and the learned Standing Counsel for GHMC.
8. Learned counsel for the appellant contended that though the notice was dated 04.03.2022, the same was served to the appellant only on 24.05.2022 and 4 Dr.GRR, J cmsa_2_2023 the appeal was filed on 06.06.2022 within 30 days after receiving the notice. As such, the same was not barred by limitation. The learned Chief Judge, City Small Causes Court committed an error in dismissing the appeal on the ground of limitation.
9. Learned Standing Counsel for GHMC on the other hand contended that the appellant without paying the pending dues, approached this Court by preferring the Second Appeal. The appellant had to pay an amount of Rs.20,69,770/- by 31.03.2022 itself. He issued a cheque, but the same was bounced on 23.04.2022. He failed to make genuine payment against the bounced cheque. Infact, the cheque issued by the appellant would show that the appellant earlier had no dispute in relation to the demanded amount. The Government had announced a one-time scheme (for short "OTS") i.e. 90% rebate on accumulated arrears on property tax, provided the tax payer would clear the principal amount of property tax dues till the year 2022-23 together with 10% of interest on accumulated arrears at one go starting from 17.07.2022 to 31.10.2022. But the petitioner failed to avail the benefit under OTS Scheme. Without paying the property tax, the appellant approached this Court duly suppressing the facts and prayed to dismiss the Second Appeal. 9.1. Learned Standing Counsel for GHMC further submitted that there was no endorsement made by the appellant on the office copy of the demand notice. 5
Dr.GRR, J cmsa_2_2023 The endorsement made by the appellant on his copy cannot be relied, as it is self-serving.
10. Learned counsel for the appellant in reply contended that the office copy of the demand notice contained an interpolation with regard to the date. The demand notice issued to the appellant and the office copy were both different. There was no designation of the person, who signed the said document on the office copy. The document issued to the appellant was on the letter head of the GHMC. There was no stamp of the person, who signed on the said document to know whether he was the authorized person or not. As such, there was no sanctity to the office copy filed by the respondent Corporation along with their counter and prayed to remand the matter to the trial court to consider the aspect of limitation.
11. On a perusal of the order of the learned Chief Judge, City Small Causes Court, Hyderabad in M.A.No.102 of 2022, the same was dismissed on two grounds. One on the aspect that the appeal was not filed by the appellant within the period of limitation and on the other aspect that the respondent Corporation was permitted to claim arrears for a period of nine (09) years. On the first aspect, to consider whether the appeal was filed within the period of limitation, the appellant was relying upon the endorsement made by him on the demand notice issued to him by the Corporation on 04.03.2022 stating that he made an 6 Dr.GRR, J cmsa_2_2023 endorsement on the said document that he received the same on 24.05.2022. Though, he was disputing the office copy of the demand notice filed by the respondent Corporation, the endorsement should be made by the applicant on the office copy of the respondent, but not on the demand notice issued to him. As the endorsement can be made by the applicant at any time, even subsequently, the same cannot be considered as a reliable piece of evidence to decide the aspect of limitation. As such, this Court does not find any merit in the contention of the learned counsel for the appellant on the said aspect.
12. Coming to the second aspect, whether the respondent Corporation can claim the arrears for more than three years preceding the date of demand notice, the learned Standing Counsel for the respondent Corporation relied upon the judgment of this Court in CMSA Nos.1, 3, 4 and 5 of 2021 dated 25.11.2022. In the above judgment, this Court after extracting Section 278-A of the GHMC Act, 1955, held that:
"11. From a close reading of the above provision, it is clear that the limitation was contemplated for the purpose of execution. Three (3) years time is given for issuing distraint order for recovery of tax due and limitation commences from the date on which the distraint order could have been issued; for prosecution six (6) years is limitation and limitation commences from the date on which a right to initiate prosecution is accrued; and for filing the 7 Dr.GRR, J cmsa_2_2023 suit for recovery of tax demand amount nine (9) yeas is limitation and limitation commences from the date on which suit could have been first instituted."
13. As the above aspect is already decided by this Court in the above CMSA, this Court does not find any necessity to interfere with the orders of the learned Chief Judge, City Small Causes Court, Hyderabad in M.A.No.102 of 2022 dated 04.11.2022 and any substantial question of law arising out of it. As such, the Second Appeal is dismissed as not maintainable.
14. In the result, the C.M.S.A.No.2 of 2023 is dismissed.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 20th June, 2024.
Nsk.