Karnataka High Court
Shariff Constructions vs Bruhath Bangalore Mahanagar Palike on 22 February, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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WP No.1867 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.1867 OF 2024 (LB-TAX)
BETWEEN:
SHARIFF CONSTRUCTIONS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS REGISTERED OFFICE AT
SHERIFF CENTRE, 5TH FLOOR
NO.73/1, ST.MARKS ROAD
BENGALURU - 01
REP. BY MANAGING PARTNER
MR. ZIAULLA SHRERIFF
S/O ABDUL GAFFA SHERIFF
Digitally signed AGED ABOUT 22 YEARS.
by VIJAYA P ...PETITIONER
Location: HIGH (BY SRI. SYED AKMAL HASAN RAZVI, ADV.,)
COURT OF
KARNATAKA
AND:
1. BRUHATH BANGALORE MAHANAGAR PALIKE
HAVING ITS OFFICE AT CORPORATION BUILDING
J.C. ROAD, BENGALURU
BY ITS COMMISSIONER.
2. ASSISTANT REVENUE OFFICER
BANGALORE MAHANAGARA PALIKE
LAKSHMIDEVINAGAR, NORTH DIVISION
NO.8/16, J.S. LAKSHMIKANTH COMPLEX
NEAR KANTEERVVA STUDIO SIGNAL
RING ROAD, NANDINI STUDIO SIGNAL
RING ROAD, NANDINI LAYOUT
BANGALORE - 96.
...RESPONDENTS
(BY SMT. SUMANA BALIGA M, ADV., FOR R1 & R2)
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WP No.1867 of 2024
THIS W.P. IS FILED UNDER ARTICLE 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO REMOVE THE SEAL FROM THE PETITIONERS
OFFICE IMMEDIATELY. QUASH THE NOTICE BEARING
NO.W/38/NOV/2023-24/069698 DATED 27/11/2023
PRODUCED AS ANNEXURE-D SINCE THERE CAN BE NO TAX ON
LAND WHEN TAX IS BEING ASSESSED AND COLLECTED FOR
THE APARTMENTS CONSTRUCTED ON THE LAND & ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has filed the present writ petition seeking
for de-sealing the premises and has further sought for
setting aside of the notice at Annexure-D which is the
demand notice issued by the respondent - BBMP
stipulating the property tax, cesses, interest, penalty, solid
waste management cess and total amount due with
respect to the year 2019-2020. Petitioner has also sought
for refund of excess tax collected from the petitioner.
2. It is noticed that in most of the petitions filed
by the property owners, the contention that is taken is
that the demand notice raised as well as the show cause
notice issued, are not preceded by the procedure
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stipulated under the Bruhat Bengaluru Mahanagara Palike
Act, 2020 (for short 'the Act') and accordingly, it is
submitted that unless there is an inspection in their
presence, the consequential notices and orders are
required to be set aside.
3. On behalf of the respondent - BBMP it is
submitted that inspection has been carried out and the
details are ascertained and on the basis of which show
cause notices and demand notices have been issued and
on the basis of the inspection report, the re-assessment
has been done on the material collected at the time of
inspection and procedure as provided under Section 144 of
the Act, has been complied with. Accordingly, it is
submitted that the question of interfering with the
impugned demand notice does not arise.
4. In the present case, this Court by order dated
24.01.2024 has passed an order which reads as
hereunder:
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"Learned counsel for the petitioner submits that
the petitioner has been paying taxes in terms of
the built-up area and despite petitioner paying
taxes regularly, fresh proceedings are initiated
insofar as the vacant area contrary to FAQ
No.22.
In light of the contentions raised, there
would be an inspection to be carried out by the
respondent - BBMP in the presence of the
petitioner.
Petitioner to be present at the site on
01.02.2024 at 11.00 a.m. Petitioner to furnish all
necessary documents as sought for by the BBMP.
A report to be prepared and filed
containing all relevant details that may be
relating to the proceedings to be initiated by the
BBMP to reopen self-assessment.
In light of the assertion regarding the
respondent of BBMP having sealed the office of
the petitioner, taking note of the contentions
raised, the said premises is to be de-sealed
forthwith.
Petitioner undertakes to pay all lawful dues
as may be raised. The said undertaking is taken
note of."
5. Pursuant to such order passed, learned counsel
for BBMP has filed a memo enclosing copy of Mahazar at
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Annexure-R1 which details the measurement of the plinth
area (furnished in square meters) taking note of the
construction put up pursuant to the sanction plan.
6. Heard both sides.
7. In light of numerous petitions filed questioning
the correctness of the procedure followed by the BBMP
while reopening the self-assessment returns, need has
arisen to lay down the procedure that is required to be
followed in cases of reopening self-assessment where
returns are not filed and in cases of random scrutiny.
8. It must be noticed that Section 144 (13) of the
Act provides for the procedure in cases of random scrutiny
where returns are already filed and in cases where returns
are not filed as stipulated under sub-section (7) of Section
144 of the Act, the Chief Commissioner or any person
authorized by him may enter, inspect, survey or measure
any land or building after giving notice to the owner or
occupier. It is the first step as stipulated under Section
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144(13) of the Act which would come into play either in
case of random scrutiny or in case of evasion where
though properties are constructed and liable for tax and
returns under self-assessment ought to have been filed,
such returns are not filed.
9. In such of the above cases, in terms of Section
144(13) of the Act, the Chief Commissioner or person
authorized by him may inspect, survey and take
measurement of the building. However, it is clear that
such inspection, survey or measurement must be after
giving notice to the owner or occupier. Further, in terms
of Section 144(13) of the Act, at the time of inspection,
owner or occupier is bound to furnish necessary
information required, which would be the basis for the
purpose of reassessment.
10. It is also clarified that even where there is
incorrect self-assessment returns filed by the property
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owners, resort to inspection under Section 144(13) of the
Act is required to be conducted.
11. At the time of inspection, if the property owner
or occupier refuses to allow the authorized officer to
inspect the premises even after the officer has given
reasonable opportunity, such refusal shall be recorded and
the officer shall proceed to assess the property to the
"best of his judgment".
It is to be noticed that the power of the officer to
proceed on the premise of "best judgment assessment"
would also come into play where the property owner
refuses to furnish information required, as such
information would be only in the knowledge of the
property owner. This requirement of furnishing of
information in the event of reassessment would arise
where there are disputes relating to the year and the
month when the property was let out as in many disputes
it is found that the self-assessment made declaring portion
of the property as self-occupied and tenanted, is disputed
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by the respondent - BBMP. However, such necessity of
furnishing information will also arise regarding the usage
of the premises, i.e., whether the premises is used for
residential or non-residential.
12. It is also necessary to note that at the time of
inspection, if the Chief Commissioner is seeking to reopen
the self-assessment, he is required to ascertain relevant
facts making out grounds for reopening of self-assessment
including relating to applicable zone.
13. Subsequent to report prepared after the
procedure to be followed under Section 144(13) of the Act
as referred to above, procedure under Section 144(15)
would then come into operation.
14. For the purpose of reopening such assessment
in terms of the contingencies referred to above i.e., (i)
random scrutiny (ii) where no returns are filed and (iii)
where self-assessment is found to be faulty, proceedings
under Section 144(15) of the Act will have to be followed.
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In terms of the procedure under Section 144(15) of the
Act, it is clear that procedure under Section 144(15) (a) to
(e) of the Act will have to be followed, in the event on the
basis of the physical inspection and information gathered
and preparation of report by the officer as contemplated
under Section 144(13) of the Act, it is found that
reassessment of the self-assessment property tax return is
required to be made.
In terms of the reassessment made by the authority
on the basis of the report after inspection, the penalty as
contemplated under Section 144(15)(b) of the Act will
come into play along with interest to be paid on the fresh
demand.
15. Right is conferred upon the property owners for
notice under Section 144(15)(c) of the Act where the Chief
Commissioner or the Authorized Officer is required to issue
notice of reassessment to the tax payer demanding that
the tax shall be paid within 30 days of service of notice
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and after giving tax payer an opportunity of show cause in
writing. This opportunity is to enable the occupier to
accept the property tax assessed on the basis of the
inspection which would be in the nature of reassessment
and further it is open for the property owner to accept the
penalty levied or object to such reassessment proceedings
within a period of 30 days from the date of receipt of copy
of the notice under Section 144(15)(c) of the Act.
16. The Chief Commissioner thereupon is required
to consider the objections and pass orders confirming or
revising such assessment (could also be reassessment)
within a period of 60 days from the date of filing of
objections and a copy of the order under Section
144(15)(e) of the Act either accepting the objections or
rejecting the same, shall be sent to the owner or occupier
concerned.
17. This whole procedure that comes out from a
plain reading of Section 144(13), (14) and (15) of the Act
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is however subject to point of limitation provided under
Section 144(16) of the Act.
18. Section 144(16) of the Act provides that
assessment or reassessment shall not be made (i) Five
years after filing of tax returns under Section 144 of the
Act, (ii) Five years after the evidence of facts, sufficient in
the opinion of the Chief Commissioner or Authorized
Officer justifying making of reassessment comes to such
officer's knowledge, whichever is later.
19. The power is also conferred wherever there are
disputes as regards to classification of zones, unit area
value and class of property, for the Chief Commissioner to
clarify, which clarification shall be final. Such power can be
exercised simultaneously with passing of an order under
Section 144(15)(e) of the Act. However, any such
clarification under Section 144(18) of the Act shall be
information made to the occupier or property owner to
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enable him to take his stand before passing of the order
under Section 144(15) (e) of the Act.
20. Once such order is passed in light of the
statutory scheme, any challenge to the orders ought not to
be entertained by the writ court in a routine manner in
light of the law laid down in the case of Phoenix ARC
Private Limited vs. Vishwa Bharati Vidya Mandir - Civil
Appeal No. 257-259/2022, wherein the Apex Court has
stated that intervention by way of writ proceedings cannot
be made routinely bypassing the statutory procedure for
grievance redressal. Though in exceptional cases at the
discretion of the Court when circumstances are so made
out, the Court may entertain such petitions. Once an order
is passed and as the same would involve factual disputes
and other contentions, the orders are open for challenge
by way of appeal under Section 179 of the Act. Such
appeal under Section 179 would be subject to deposit as
contemplated under Section 148(3) of the Act.
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21. Insofar as the persons authorized as referred to
in Section 144(13) of the Act, a memo filed by the learned
counsel for respondent - BBMP dated 22.02.2024 would
indicate the officers who are authorized. The same is taken
note of. Needless to state, in the event demands made is
not subject to challenge by way of appeal or any other
legal proceedings, the power is available to the respondent
- BBMP to take recourse to measures for recovery as
stipulated under Sections 148 (4) and (5) of the Act.
22. The above directions / observations are passed
after hearing both sides which would be the procedure to
be followed after the inspection report is filed pursuant to
directions for inspection as ordered in large number of
similar petitions with similar factual matrix.
23. In the present case, report having been filed,
procedure as stipulated above are ought to recommence
from the stage of post inspection as contemplated under
Section 144 (13) of the Act as referred to above.
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24. It is also noticed that in many of the matters,
the petitioners have challenged the validity of the standard
operating procedure as being in violative of the statutory
scheme. Wherever the SOP is contrary to the statutory
scheme as observed above, the BBMP to take appropriate
steps to have the SOP amended so as to bring it in
consonance with the statutory scheme as observed above.
25. In light of the above, the impugned demand
notice at Annexure-D is set aside and respondent - BBMP
is at liberty to take further steps in terms of the procedure
stipulated above. All contentions on merit as regards the
contents of the inspection report if any are kept open
while it is made clear that in the present case, no question
can be raised that inspection has been done in the
absence of petitioner as admittedly inspection has been
done in his presence though the petitioner has not affixed
his signature on the mahazar stating that he had certain
reservations regarding inclusion of certain areas that
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ought to have been excluded while calculating the area
that could be the subject matter of measurement to be
taken for the purpose of calculating property tax as
recorded in the mahazar report.
26. Accordingly, writ petition is disposed off.
Sd/-
JUDGE
VP
