Delhi High Court
Bharat Consultants Pvt Ltd vs Ndmc Through The Assessing ... on 20 February, 2013
Author: G. S. Sistani
$~59.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1099/2013 & CM 2083/2013
BHARAT CONSULTANTS PVT LTD ..... Petitioner
Through : Mr.Sanjay Poddar, Adv. for Sr.Adv. along
with Mr.Sandeep Bajaj, Mr.Govind Kumar
and Ms.Navlin, Advs.
versus
NDMC THROUGH THE ASSESSING AUTHORITY..... Respondent
Through : Ms.Madhu Tewatia and Ms.Sidhi Arora,
Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
ORDER
% 20.02.2013
1. Present writ petition has been filed by petitioner under Article 226 of the
Constitution of India seeking to quash/set aside the impugned order dated
21.1.2013 and the consequent property tax bill dated 2.2.2013.
2. As per the petition, petitioner is the owner of the premises bearing no.169,
Golf Links, New Delhi. Prior to the year 2006, the premises in question was
being assessed and the property tax bills were raised by the respondent
taking the rateable value of the property at the rate of Rs.42,000/-, per
annum. On 27.2.2007 the respondent issued a show cause notice to the
petitioner under Section 72 of the NDMC Act proposing to increase the
rateable value of the property in question from Rs.42,000/- to
Rs.42,84,600/-. Reply to this show cause notice was filed by the petitioner
on 29.3.2007. Since no assessment order was passed the property of the
petitioner was continued to be assessed @Rs.42,000/-, per annum, which
is evident from the copies of demands raised by the respondent on
19.11.2007 and 10.12.2008. In the year 2009 assessment by unit area
method was introduced by the respondent. The petitioner filed a self-
assessment property tax Return in the year 2009. Subsequently the
petitioner received a show cause notice dated 19.11.2012 for finalizing the
assessment in relation to the notice issued in the year 2007 with regard to
the subject property. By a communication dated 23.11.2012 the petitioner
informed the respondent that reply / objections to the show cause notice
dated 27.2.2007 had been filed, the demand is illegal and without any
basis, and no final order had been passed. It is the case of the petitioner
that the property in question is self-occupied and the assessment order,
which has been passed by the respondent on 21.1.2013, whereby the
rateable value of the property in question has been increased from
Rs.42,000/- to Rs.33,02,600/-, from the year 2006 onwards, is illegal and
arbitrary.
3. Learned counsel for the petitioner submits that the petitioner was not
granted any opportunity to put forth its submission and further the
respondent has failed to take into consideration the settled position of law.
4. Ms.Madhu Tewatia, learned Standing Counsel for the NDMC, who enters
appearance on an advance copy, while refuting the submission made by
counsel for the petitioner and the averment made in the writ petition,
submits that the present petition is not
W.P.(C) 1099/2013 2/4
maintainable in view of the fact that the petitioner has an equally
efficacious remedy available by filing an appeal. Counsel further submits
that the property in question is not self-occupied as the company is the
owner of the property and the property is occupied by three of its
Directors. Counsel also contends that prior to the unit area method the
respondent was well within its right to assess the property on the basis of
the comparable rent in the area. In support of this submission counsel has
relied upon New Delhi Municipal Council v. The State Trading
Corporation of India Ltd., reported at 126 (2006) DLT 191 (DB) to show
that the NDMC is well within its right to carry out the assessment.
5. Learned counsel for the petitioner submits that the remedy of filing an
appeal is not an efficacious remedy as for filing an appeal the petitioner
would have to deposit the entire amount, which is highly exorbitant. In
support of this submission counsel has relied upon Chemical Sales
Corporation & Ors. v. NDMC, reported at 64 (1996) DLT 160 (DB), more
particularly para 7, which reads as under:
"(7) The next point about the bar of exhaustion of the equally
efficacious remedy by way of appeal etc. In ordinary course, it may
not be very appropriate to resort to the jurisdiction of the High
Court under Article 226 if an alternative efficacious remedy is
available. However, an alternative remedy is not an absolute bar to
the maintainability of the petition where an authority has acted
wholly without jurisdiction. One has to take into consideration that
in case of allegation relating to infringement of fundamental rights,
lack of jurisdiction in the Tribunal trying the matter and in cases
where the impugned
W.P.(C) 1099/2013 ¾
order has been made in violation of the principles of natural justice,
it has been held that the exhaustion of alternative remedy is no bar
to entertaining the writ under Article 226 the reason being that in
such matters the order can be treated as void or non-est (See
Himmat Lal v. State of MP, AIR 1954 SC 403, Babu Ram v. Zila
Prasad, air 1969 SC 556, Carl Still G.m.b.H v State of Bihar, AIR
1961 SC 1615).
6. Learned senior counsel for the petitioner submits that the main grievance
of the petitioner is that the respondent had no means to assess the
comparable rent and if at all, the petitioner should have been permitted to
produce the evidence on record showing the comparable rent of the area.
7. Be that as it may after some hearing in the matter, it is agreed by counsel
for the parties that this matter be remanded back to the Director Taxes,
NDMC, with liberty to the petitioner to place on record such material as
the petitioner may deem fit.
8. Accordingly, the impugned order dated 21.1.2013 issued by the
respondent to the petitioner is set aside. As agreed, the petitioner and or
his representative shall appear before the Director Taxes, NDMC, on
13.03.2013 at 2.30 p.m. The petitioner shall be entitled to place on
record the relevant material on which reliance is placed. The Director
Taxes, NDMC, after granting a personal hearing to the petitioner or his
representative will pass a reasoned order in accordance with law.
9. Writ petition and application stand disposed of in above terms.
G.S.SISTANI, J
FEBRUARY 20, 2013 msr
W.P.(C) 1099/2013
