Mcd vs Sunita Devi Gupta
2009 Latest Caselaw 2735 Del

`*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 23284/2005

                                           Date of decision : 21.07.2009
IN THE MATTER OF :
MCD                                                 ..... Petitioner
                          Through: Mr. Himanshu Upadhyaya, Advocate

                     versus

SUNITA DEVI GUPTA                                     ..... Respondent
                          Through: Mr. Apurb Lal, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not?   No.

     3. Whether the judgment should be reported in the Digest?   No.

HIMA KOHLI, J. (ORAL)

1. The petitioner MCD has filed the present writ petition assailing

the order dated 24.11.2003 passed by the learned ADJ in an appeal

preferred by the respondent/assessee under Section 169 of the Delhi

Municipal Corporation Act, 1957 (hereinafter referred to as „the Act‟)

against a bill dated 15.02.2000 raising a demand of property tax in respect

of Flat No. 2, on the ground floor of premises bearing No. 1535/1(1/3), East

Patel Nagar, New Delhi. By the impugned order, the assessment order

dated 30.06.1997 issued by the Joint Assessor and Collector was quashed on

account of the same violating the statutory provisions of Section 126 of the

Act. The learned Additional District Judge held that the petitioner/MCD

could not have passed the assessment order in respect of a notice issued on

22.02.1992, signed on 30.06.1997 and received by the respondent/assessee

on 15.02.2000, the same being time barred.

2. Counsel for the petitioner/MCD submits that the learned ADJ

erred in passing the impugned order for the reason that the order dated

30.06.1997 was in fact a rectification assessment order, rectifying the

ratable value fixed by an order dated 20.03.1991 and that it was not an

order passed for deciding the notice dated 22.02.1992 issued to the

assessee under Section 126 of the Act. He states that the order dated

30.06.1997, being a rectification order, there is no question of the

assessment order being time barred as there is no limitation prescribed for

the purpose of rectification and hence, sub section (1)(a) of Section 126 of

the Act is not applicable.

3. A rectification order can be passed only in terms of the

provisions of Section 176 of the Act. The said provision is reproduced

hereinbelow for ready reference:

"176. Immaterial error not to affect liability - No assessment and no charge or demand on account of any tax shall be impeached or affected by reason only of any mistake in the name, residence, place of business or occupation of any person liable to pay the tax or in the description of any property or thing, or of any mistake in the amount of the assessment,

charge or demand, or by reason only of clerical error or other defect of form, if the directions contained in this Act and the bye-laws made thereunder have in substance and effect been complied with; and it shall be enough in the case of any such tax on property or any assessment of value for the purpose of any such tax, if the property taxed or assessed is so described as to be generally known; and it shall not be necessary to name the owner or occupier thereof."

4. A perusal of the aforesaid provision shows that any formal defect

in the name, residence, place of business or occupation of any person liable

to pay the tax or any mistake in the amount of the assessment, charge or

demand, by reason only of clerical error or other defect of form can be

rectified by invoking the said provision. However, under the garb of

rectification, the petitioner/MCD cannot attempt to amend the assessment

list and rectify the assessment order dated 20.03.1991, as the same is not

permissible under the provisions of Section 176 of the Act. In the present

case, admittedly, the assessee did not approach the petitioner MCD seeking

rectification of the assessment order. Rather, the petitioner MCD suo moto

decided to rectify the assessment orders for the years w.e.f. 01.04.1984,

01.12.1988 and 01.04.1994. The petitioner/MCD by rectifying the

assessment orders for the relevant years, upwardly revised the ratable value

for the aforesaid period. The said rectification can by no stretch of

imagination, be termed as a correction of a formal defect.

5. The said act of upward revision of the ratable value, by passing

the purported rectification order, amounts to amending the assessment list

which could only have been done under the provisions of Section 126 of the

DMC Act, but not after the expiry of three years from the end of the year in

which, notice is given under sub section (2) or sub section (3) of Section 126

of the Act as mentioned in sub section (4)(b) thereof. Any other

interpretation would amount to making the provisions of Section 126 of the

Act redundant. The aforesaid ground taken by the petitioner/MCD to assail

the impugned order dated 24.11.2003 is untenable as the order dated

30.06.1997 is violative of Section 126 of the Act, three years having already

lapsed on 31.03.1995, after issuance of the notice dated 22.02.1992 to the

respondent/assessee.

6. It is also pertinent to note that a perusal of the purported

rectification order dated 30.06.1997 (Annexure-5) shows that it neither

mentions that the same was passed under Section 176 of the DMC Act, nor

does the term „rectification‟ appear in the said order. In the absence of any

such mention made in the order dated 30.06.1997, it is difficult to accept

the contention of the counsel for the petitioner, that the said order was one

passed for rectification. Rather, in para 6 of the writ petition, the petitioner

has stated that since the respondent had applied for mutation and for

assessment on purchased price, the assessing authority rectified the ratable

value vide order dated 30.06.1997. Be that as it may and assuming that the

said order was one of rectification, the same does not satisfy the

requirements imposed by Section 176 of the Act, as it was not passed to

remove any formal defect in the assessment or demand. Rather, the said

order substantially affects the liability of the respondent/assessee to pay

property tax for the relevant years, by enhancing the same. The

respondent/assessee cannot be permitted to be put to a disadvantage, by

adopting such a mode.

7. For the reasons stated hereinabove, the ground taken to assail

the impugned order dated 24.11.2003 is turned down as being devoid of

merits. It is held that the impugned order does not suffer from any

perversity, illegality or arbitrariness that requires interference by this Court

in the present proceedings.

8. In view of the fact that the writ petition is rejected, the

petitioner is directed to refund the amount of Rs.76,847/- deposited by the

respondent with it, within a period of four weeks from today, failing which,

the petitioner shall pay simple interest @ 8% per annum, till the said

amount is realized by the respondent. The writ petition is dismissed with

costs quantified at Rs.7,000/-.

HIMA KOHLI,J JULY 21, 2009 rkb