Madras High Court
M/S.Taj Foundations Pvt. Ltd vs The Deputy Commissioner (R&F) on 1 March, 2022
W.P.Nos.4249 of 2022 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.Nos.4249, 4254, 4255, 4257, 4259 & 4261 of 2022
and
W.M.P.Nos.4389, 4393, 4395, 4397, 4399 & 4401 of 2022
W.P.No.4249 of 2022 :
M/s.Taj Foundations Pvt. Ltd.,
Represented by its Director,
Mr.A.R.Imtiyaz Ahmed,
No.220/1, 1st Floor,
Ennore Express Road, Thiruvottiyur,
Chennai – 600 019. ... Petitioner
Vs.
1.The Deputy Commissioner (R&F)
The Greater Chennai Corporation
Rippon Building, Chennai – 600 003.
2.The Assistant Revenue Officer,
Revenue Department,
Zonal Office -IV
Corporation of Chennai,
No.226, Thiruvottiyur High Road,
Old Washermanpet,
Chennai – 600 021. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari calling for the records
culminated in the impugned order dated 19.11.2021 bearing reference
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W.P.Nos.4249 of 2022 etc. batch
No.Z.O.IV/RD.C.No.R3/8957/2019 in respect of Assessment No.04-
042-03161-000 passed by the 1st respondent and quash the same.
For Petitioner : Mr.K.M.Aasim Shehzad
For Respondents : Ms.S.Vaitheeswari
Standing Counsel
COMMON ORDER
The issue raised in these writ petitions since is one and the same,
with the consent of the learned counsel appearing for the petitioners as
well as the learned Standing Counsel appearing for the respondent
Greater Chennai Corporation, these writ petitions were heard together
and are being disposed of by this common order.
2. In respect of the property belongs to these petitioners, there was
a proposal for a general revision of property tax, challenging that
proposal, these petitioners had approached this Court by filing writ
petition in W.P.Nos.1835 of 2019 etc. batch. Those writ petitions were
disposed of by a common order of this Court dated 24.01.2019, where,
the following orders have been passed.
“4. Admittedly, as against the impugned proceedings,
the petitioner is having a remedy by way of filing an appeal
before the authority referred to in the impugned proceedings
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by raising all the contentions as raised in these writ
petitions. Without doing so, the petitioner has approached
this Court and filed these writ petitions.
5. Needless to say that when such remedy is available
to the petitioner, they have to first exhaust such remedy by
raising all the contentions. Therefore, without expressing
any view on the merits of the matter, these writ petitions are
disposed of, by granting liberty to the petitioner to file such
an appeal before the authority concerned within a period of
three weeks from the date of receipt of a copy of this order.
If any such appeal is filed, the concerned Appellate
Authority shall consider the appeal and pass orders on the
same on merits and in accordance with law, without
reference to the period of limitation. No costs.
Consequently, the connected miscellaneous petitions are
closed.”
3. Pursuant to the said order passed by this Court, these petitioners
had filed appeal before the Appellate Authority. However, the Appellate
Authority, after considering the appeal and the grounds raised in the said
appeal, instead of deciding the appeal, according to the petitioners, have
chosen to issue the order in the name of notice dated 19.11.2021
invariably in all these cases seeking an objection within 15 days from the
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W.P.Nos.4249 of 2022 etc. batch
petitioners with regard to the proposed assessment of property tax by
considering these properties as a special types building category, where,
according to them, Hospitals are located, by invoking Section 137-B of
the Chennai City Municipal Corporation Act, 1919 (in short 'the Act).
4. Aggrieved over the same, the present writ petitions have been
filed.
5. Mr.K.M.Assim Shehzad, learned counsel appearing for the
petitioners would contend that, as per the order passed by this Court
referred to above, where, as against the general revision, the petitioners
were directed to file appeal, when appeals were filed by these petitioners
only in respect of general revision, the Appellate Authority should have
considered and decided the appeals on merits either way. However, the
Appellate Authority passed the present impugned order in the name of
notice stating that, they invoked Section 137-B of the Act.
6. In this context, it is the contention of the learned counsel for the
petitioner that, if at all the respondent Corporation wants to invoke
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W.P.Nos.4249 of 2022 etc. batch
Section 137-B of the Act, there must be a separate procedure
contemplated under Section 137-B, under which, specific notice to be
given, giving 15 days time to the assessee to respond and then only final
order shall be passed. Therefore, without re-coursing to such a system of
issuing notice under Section 137-B of the Act, now an appeal filed by the
petitioners against the general revision since has been converted into
137-B proceedings, which is impermissible. Therefore, for that reason,
the impugned orders are liable to be interfered with, he contended.
7. In support of the said ground, the learned counsel relied upon
an order passed by a learned Judge in a batch of cases in W.P.No.35304
of 2020 etc. batch in the matter of The Mehta Multispeciality Hospitals
India Private Limited Vs. The Commissioner, Corporation of Chennai
and others dated 03.03.2021, where, the learned counsel has relied upon
the following passage:
“12. In such an event, the proper course of action for
the respondents would have been to invoke the provisions of
Section 137-B of the Act that vest in them the powers of re-
assessment and not undertake a general revision in the light
of G.O.Ms.73 of 2018, that has been kept in abeyance by
G.O.Ms.No.150 of 2019, pending revamp of the system.
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W.P.Nos.4249 of 2022 etc. batch
Section 137-B of the Act reads as follows:
'137-B. Power to assess in case of escape from assessment.
— Notwithstanding anything to the contrary contained in
this Act or the rules made thereunder, if for any reason any
person liable to pay any of the taxes or fees leviable under
this Chapter has escaped assessment in any half-year or
year, or has been assessed in any half-year or year at a rate
lower than the rate at which he is assessable or, in the case
of property tax has not been duly assessed in any half-year
or year consequent on the building or land concerned
having escaped proper determination of its annual value,
the commissioner may, at any time within six years from the
date on which such person should have been assessed, serve
on such person a notice assessing him to the tax or fee due
and demanding payment thereof within fifteen days from the
date of such service; and the provisions of this Act and the
rules made thereunder shall so far as may be apply as if the
assessment was made in the half-year or year to which the
tax or fee relates'.”
8. Per contra, Ms.S.Vaitheeswari, learned Standing Counsel
appearing for the respondents, on instruction, would submit that, the
impugned communication dated 19.11.2021 is a notice under Section
137-B of the Act as contemplated therein and it is not a final order of
assessment or demand of property tax for special buildings.
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W.P.Nos.4249 of 2022 etc. batch
9. She would also submit that, though this order was passed on
19.11.2021, which was subsequently served on the petitioners, instead of
filing the objection if any, the petitioners have chosen to approach this
Court by filing the present writ petitions challenging the notices,
therefore, since it is a settled proposition that notices normally cannot be
permitted to be challenged before this Court under Article 226 of the
Constitution, on that ground itself, these writ petitions are liable to be
rejected.
10. The learned Standing Counsel, on instruction, would further
submit that, till date since no final orders have been passed pursuant to
the impugned notice dated 19.11.2021, it is open to the petitioners to
make a quick re-action by filing an objection as sought for in the said
notices and if they made objection, the same would be considered and
accordingly, final orders would be passed, she submitted.
11. I have considered the said submissions made by the learned
counsel for the parties and have perused the materials placed before this
Court.
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W.P.Nos.4249 of 2022 etc. batch
12. The objection raised by the petitioner side as projected by the
learned counsel for the petitioners is that, as against the general revision
when they approached the Appellate Authority, that appeal should have
been disposed of on its own merits, instead, they converted the said
appeal into a proceedings under Section 137-B of the Act which is
impermissible.
13. In this context, it is to be noted that, it is a settled proposition
of law that, the wrong quoting of a provision or failed to quote the
provision of law would not vitiate the proceedings, if the ingredients
which are otherwise to be followed by the authorities concerned under
the particular provision of law is followed.
14. Here in the case in hand, no doubt they filed an appeal before
the Appellate Authority as against the general revision.
15. However, since these buildings which are in question, for
which, now the proposed assessment has been made are, according to the
respondent Corporation, special type buildings which were used as
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W.P.Nos.4249 of 2022 etc. batch
hospitals or houses, therefore, they are to be assessed as a special
buildings, for which, they can very well invoke Section 137-B of the Act,
which says that, in the case of property tax has not been duly assessed in
any half year or year consequent on the building or land concerned
having escaped determination of its annual value, the Commissioner may
at any time within six years from the date on which such person should
have been assessed, serve on such person, a notice assessing him to the
tax or fee due and demanding payment thereof within 15 days from the
date of such service.
16. Therefore, it is an enabling provision under Section 137-B of
the Act for the Corporation to assess the subject assessment for the
special buildings, where, the earlier assessment i.e., the general revision
or general assessment made is contemplating a lessor property tax. So,
the lesser property tax comparing with the special assessment can be
treated as an escaped tax, for which, the assessment can very well made
as an escaped assessment within the meaning of Section 137-B of the
Act.
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W.P.Nos.4249 of 2022 etc. batch
17. In fact, this has been reiterated or indicated in the said
judgment of the learned Judge in Mehta Multispeciality Hospitals case
cited supra, where, the learned Judge says, the proper course of action
for the respondents would have been to invoke the provisions of Section
137-B of the Act that vest in them the powers of re-assessment.
18. Here in the impugned notices, the respondent has stated that,
hence there is no bar to assess the properties being used as Hospitals and
Nursing Homes under Special Type Buildings category and to revise the
property tax under Section 137-B of the CCMC Act, 1919. They further
stated that, after the consideration of the above, a reply to the objections
along with the calculation sheet are enclosed herewith, provided a time
frame of 15 days to provide your objections.
19. Therefore, the present impugned proceedings is nothing but a
notice giving 15 days time to the assessees i.e., the petitioners as
contemplated under Section 137-B of the Act. Therefore, it cannot be
stated that, the appeal has been converted into Section 137-B
proceedings, for which, a separate notice should have been issued.
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W.P.Nos.4249 of 2022 etc. batch
20. If at all the respondent Corporation without issuing this
proceedings i.e., dated 19.11.2021 being the notice as contemplated
under Section 137-B of the Act and straightaway passed a common final
assessment orders with demand, then, such a plea could have been raised
by the petitioners, however, here they issued only the present
proceedings as a notice within the meaning of Section 137-B of the Act.
Therefore, mere absence of quoting the provision at the head of the
notice would not vitiate the proceedings itself. As discussed above, the
non-quoting of a provision would not vitiate the proceedings.
21. Therefore, the said objection or ground raised on behalf of the
petitioners cannot be countenanced, hence, the same is liable to be
rejected.
22. Now the learned Standing Counsel for the respondent
Corporation, on instruction, since has stated that, the final order is yet to
be passed, therefore, even now they can make objection pursuant to the
impugned notices, this Court is inclined to dispose of these writ petitions
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W.P.Nos.4249 of 2022 etc. batch
with the following orders:
That the petitioners are permitted to file objection to the
impugned notices dated 19.11.2021 in respect of each of the
cases separately within a period of 15 days from the date of
receipt of a copy of this order and on receipt of such
objections, the respondent Corporation shall consider those
objections objectively and pass orders on merits and in
accordance with law as contemplated under Section 137-B of
the Chennai City Municipal Corporation Act, 1919.
23. With this observation and direction, these Writ Petitions are
disposed of. No costs. Consequently, connected miscellaneous petitions
are closed.
01.03.2022
Index : Yes
Speaking Order : Yes
Sgl
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W.P.Nos.4249 of 2022 etc. batch
To
1.The Deputy Commissioner (R&F)
The Greater Chennai Corporation
Rippon Building, Chennai – 600 003.
2.The Assistant Revenue Officer,
Revenue Department,
Zonal Office -IV
Corporation of Chennai,3
No.226, Thiruvottiyur High Road,
Old Washermanpet,
Chennai – 600 021.
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W.P.Nos.4249 of 2022 etc. batch
R. SURESH KUMAR, J.
Sgl
W.P.Nos.4249, 4254, 4255,
4257, 4259 & 4261 of 2022
01.03.2022
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