Delhi High Court
Shri Banarasi Dass Chandiwala ... vs Mcd & Ors on 10 September, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.09.2009
+ W.P.(C) 7913/2008
SHRI BANARASI DASS CHANDIWALA SEWA SMARK TRUST
SOCIETY ..... Petitioner
versus
MCD & ORS .....Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. B.B. Jain, Advocate
For the Respondents : Ms. Amita Gupta, Advocate
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in Digest?
BADAR DURREZ AHMED, J (ORAL)
The petitioner has challenged the order dated 08.08.2008 passed by
the Assessor and Collector in rectification proceedings. The main grievance
of the petitioner is that although he had made a request for computing the
property tax on unit area method for the period 01.04.2000 to 31.03.2004 in
terms of Section 116 (G)(2) of the Delhi Municipal Corporation Act, 1957 as
amended by the DMC Amendment Act, 2003, the same has been rejected on
an absolutely incorrect premise.
2. When this matter was heard on 01.09.2009, we had noted that the
petitioner's request for rectification and for being assessed under the unit
area method was rejected by the Assessor and Collector in the following
terms:-
"The assessment file and documents were examined. The
request to make the rectification under unit area method
cannot be accepted as the provision of Section 116(G)(2) of
the DMC Amendment Act, is available for the pending
assessment between 01.08.2003 to 31.03.2004. Here case has
already been finalized on 29.03.2004. The applicant has
given a letter dated 02.04.2004 objecting the order dated
29.03.2004. Going through records till 02.04.2004, no option
for UAM is available. Only on 03.04.2004 a letter for
rectification under UAM is available which is even not
diarized. Hence it cannot be covered under Section
116(G)(2) at this stage".
3. In the previous order, we had also noted that the assessment order
dated 29.03.2004 was on ex-parte basis, when according to the petitioner, it
could not have been done in view of the fact that the petitioner had supplied
all the information, at all times, as requested by the Assessing Officer. Our
attention was also drawn to the very first sentence of the impugned
rectification order dated 08.08.2008 wherein it is recorded that the
assessment order dated 29.03.2004 was done on an ex parte basis "due to
non-submission of information from the taxpayer". Since the learned
counsel for the petitioner had stated that this statement was ex facie wrong
and would be clear from the records, we had directed the learned counsel for
the respondent to produce the relevant file before this Court on the next date
of hearing. Today the file has been produced before us and we have
examined the same. From the file it appears that a letter dated 31.12.2003
was issued by the Joint Assessor and Collector requiring the petitioner to
provide the following details/documents w.e.f. 01.04.2000:-
"I]. Copies of balance-sheets w.e.f. 1.4.2000 onwards
II]. Details of tenancies in your premises w.e.f. 1.4.2000 till
date
III}.Valuation report with regard to constructions/
additions/alterations & Renovations etc.
IV} Copies of Income tax returns for the relevant period may
also be filed."
4. We find from the records of the file that the said letter dated
31.12.2003 was replied to by the petitioner by a letter dated 15.01.2004.
The same was received in the office of the MCD on 29.01.2004. Through
the said letter dated 15.01.2004, the petitioner supplied the following
information:-
"1. Copies of balance-sheets w.e.f. 1.4.2000 onwards
2. Details of Tenancies w.e.f. 1.4.2000 till date
3. Cost of construction has been given in the balance sheet. If
desired, separate valuation report can be obtained and
furnished.
4. Copies of Income Tax Returns for A.Y. 1.4.2000 till date
enclosed."
5. We may also point out that another letter was written by the petitioner
on the same date, that is, on 15.01.2004, to the Joint Assessor and Collector.
The original letter is also available in the file produced by the learned
counsel for the respondent. In that letter the petitioner made a specific
request for disposal of its case under the unit area method as per the
provisions of Section 116(G) of the said Act.
6. In view of the aforesaid facts, it is clear that the finding of the Joint
Assessor and Collector in the impugned order dated 08.08.2008 that the
request for assessment under the unit area method was received only on
03.04.2004 after the assessment had been finalized on 29.03.2004, is ex facie
wrong. The petitioner has clearly established that the request was made as
far back as on 15.01.2004 when the assessment was admittedly pending.
Therefore, the petitioner was fully entitled to seek rectification of the ex
parte assessment order dated 29.03.2004 on the ground that he had made a
request for assessment under the unit area method which had not been
heeded to by the Joint Assessor and Collector while finalizing the
assessment on 29.03.2004. From the aforesaid facts, it is also clear that the
assessment could not have been completed ex parte without hearing the
petitioner particularly when the petitioner had supplied all the information
that was sought by the Assessing Officer.
7. We are, therefore, of the view that both the impugned orders, the
rectification order dated 08.08.2008 and the original ex parte order dated
29.03.2004, ought to be set aside. They are set aside. The matter is,
therefore, remanded to the Assessing Officer to complete the assessment
under the unit area method. In the first instance, the petitioner shall appear
before the Assessing Officer on 18.09.2009 at 4.30 P.M. The assessment
proceedings would be completed within a period of three months thereafter.
Dasti.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
SEPTEMBER 10, 2009
srb
