M/S.Opulentus Overseas Careers ... vs The Commissioner
2024 Latest Caselaw 2311 Tel

Telangana High Court

M/S.Opulentus Overseas Careers ... vs The Commissioner on 20 June, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

        THE HONOURABLE DR.JUSTICE G. RADHA RANI

     CIVIL MISCELLANEOUS SECOND APPEAL No.2 of 2023


JUDGMENT:

This Second appeal is filed by the appellant aggrieved by the judgment

dated 04.11.2022 in M.A.No.102 of 2022 on the file of the Chief Judge, City

Small Causes Court, Hyderabad.

2. The appellant filed M.A.No.102 of 2022 challenging the tax demand

notice dated 04.03.2022 issued by the respondent for a sum of Rs.20,69,770/-,

which included arrears of Rs.10,68,398/-, current year demand of Rs.3,02,662/-,

interest on arrears of Rs.6,62,386/- and current year interest of Rs.36,324/-.

3. The contention of the petitioner - appellant was that the appellant was a

company involved in the business of providing secretarial services to the

interested candidates by processing their applications / VISAs through

concerned country's embassy / high commission for migration to other

countries. The appellant established a branch in Hyderabad City and purchased

Unit No.G1 in the entire ground floor of the building "Apurupa PCH",

Hyderabad admeasuring 5675 square feet including common area together with

163.948 square yards of undivided share of land out of total extent of land

admeasuring 806.58 square yards bearing Municipal No.8-2-293/82/A/467/GF

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constructed on Plot No.467, Road No.36, Survey Nos.120 and 120/1 of

Hakimpet Village, forming part of Jubilee Hills Co-operative House Building

Society Limited Layout, by virtue of registered sale deed document No.2443 of

2017 dated 27.04.2017. The petitioner was yet to make an application before

the respondent - Greater Hyderabad Municipal Corporation (for short

"Corporation") for mutation of property in his name in the records. After

purchasing the property by the appellant, the property tax was enhanced to

Rs.3,02,662/- . The respondent Corporation served a demand notice dated

04.03.2022, received by the appellant on 24.05.2022 issued under Section 268

of the HMC Act. In the said notice, the respondent Corporation demanded the

appellant to pay a sum of Rs.20,69,770/- (arrears of Rs.10,68,398/-, current year

demand of Rs.3,02,662/-, interest on arrears of Rs.6,62,386/- and current year

interest of Rs..36,324/-). The respondent Corporation under the said notice of

demand was claiming property tax beyond three years from the appellant. The

respondent Corporation was not having any right to claim property tax beyond

three years.

4. On considering the contentions of both the petitioner - appellant as well

as the respondent - Corporation, the learned Chief Judge, City Small Causes

Court, Hyderabad dismissed the appeal observing that the appellant did not

choose to prefer the appeal within the limitation period, as the demand notice

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was dated 04.03.2022, but the appeal was filed on 06.06.2022. As such, the

same was barred by limitation.

5. The learned Judge by placing reliance upon the judgment of this Court in

CMSA.Nos.5 to 9 of 2022 dated 28.07.2022, wherein it was held that, in view

of Section 278-A of the GHMC Act, 1955, the respondent Corporation have

right to recover the amount within nine (09) years under the amended provision,

which came into force with effect from 05.08.2013 observed that the respondent

Corporation has the right to recover the arrears for a period of nine years and

dismissed the appeal.

6. Aggrieved by the said observation of the learned Chief Judge, City Small

Causes Court, Hyderabad, the appellant preferred this appeal raising the

following substantial question of law:

i) The impugned notice dated 04.03.2022 was served on the appellant on 24.05.2022. While receiving the said notice, the appellant clearly endorsed that "received on 24.05.2022". The lower court without appreciating the same and assuming the said notice was served on 04.03.2022 itself, dismissed the same as "the appeal is not filed within limitation.".

7. Heard the learned counsel for the appellant and the learned Standing

Counsel for GHMC.

8. Learned counsel for the appellant contended that though the notice was

dated 04.03.2022, the same was served to the appellant only on 24.05.2022 and

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the appeal was filed on 06.06.2022 within 30 days after receiving the notice. As

such, the same was not barred by limitation. The learned Chief Judge, City

Small Causes Court committed an error in dismissing the appeal on the ground

of limitation.

9. Learned Standing Counsel for GHMC on the other hand contended that

the appellant without paying the pending dues, approached this Court by

preferring the Second Appeal. The appellant had to pay an amount of

Rs.20,69,770/- by 31.03.2022 itself. He issued a cheque, but the same was

bounced on 23.04.2022. He failed to make genuine payment against the

bounced cheque. Infact, the cheque issued by the appellant would show that the

appellant earlier had no dispute in relation to the demanded amount. The

Government had announced a one-time scheme (for short "OTS") i.e. 90%

rebate on accumulated arrears on property tax, provided the tax payer would

clear the principal amount of property tax dues till the year 2022-23 together

with 10% of interest on accumulated arrears at one go starting from 17.07.2022

to 31.10.2022. But the petitioner failed to avail the benefit under OTS Scheme.

Without paying the property tax, the appellant approached this Court duly

suppressing the facts and prayed to dismiss the Second Appeal.

9.1. Learned Standing Counsel for GHMC further submitted that there was no

endorsement made by the appellant on the office copy of the demand notice.

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The endorsement made by the appellant on his copy cannot be relied, as it is

self-serving.

10. Learned counsel for the appellant in reply contended that the office copy

of the demand notice contained an interpolation with regard to the date. The

demand notice issued to the appellant and the office copy were both different.

There was no designation of the person, who signed the said document on the

office copy. The document issued to the appellant was on the letter head of the

GHMC. There was no stamp of the person, who signed on the said document to

know whether he was the authorized person or not. As such, there was no

sanctity to the office copy filed by the respondent Corporation along with their

counter and prayed to remand the matter to the trial court to consider the aspect

of limitation.

11. On a perusal of the order of the learned Chief Judge, City Small Causes

Court, Hyderabad in M.A.No.102 of 2022, the same was dismissed on two

grounds. One on the aspect that the appeal was not filed by the appellant within

the period of limitation and on the other aspect that the respondent Corporation

was permitted to claim arrears for a period of nine (09) years. On the first

aspect, to consider whether the appeal was filed within the period of limitation,

the appellant was relying upon the endorsement made by him on the demand

notice issued to him by the Corporation on 04.03.2022 stating that he made an

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endorsement on the said document that he received the same on 24.05.2022.

Though, he was disputing the office copy of the demand notice filed by the

respondent Corporation, the endorsement should be made by the applicant on

the office copy of the respondent, but not on the demand notice issued to him.

As the endorsement can be made by the applicant at any time, even

subsequently, the same cannot be considered as a reliable piece of evidence to

decide the aspect of limitation. As such, this Court does not find any merit in

the contention of the learned counsel for the appellant on the said aspect.

12. Coming to the second aspect, whether the respondent Corporation can

claim the arrears for more than three years preceding the date of demand notice,

the learned Standing Counsel for the respondent Corporation relied upon the

judgment of this Court in CMSA Nos.1, 3, 4 and 5 of 2021 dated 25.11.2022.

In the above judgment, this Court after extracting Section 278-A of the GHMC

Act, 1955, held that:

"11. From a close reading of the above provision, it is clear that the limitation was contemplated for the purpose of execution. Three (3) years time is given for issuing distraint order for recovery of tax due and limitation commences from the date on which the distraint order could have been issued; for prosecution six (6) years is limitation and limitation commences from the date on which a right to initiate prosecution is accrued; and for filing the

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suit for recovery of tax demand amount nine (9) yeas is limitation and limitation commences from the date on which suit could have been first instituted."

13. As the above aspect is already decided by this Court in the above CMSA,

this Court does not find any necessity to interfere with the orders of the learned

Chief Judge, City Small Causes Court, Hyderabad in M.A.No.102 of 2022 dated

04.11.2022 and any substantial question of law arising out of it. As such, the

Second Appeal is dismissed as not maintainable.

14. In the result, the C.M.S.A.No.2 of 2023 is dismissed.

No order as to costs.

As a sequel, miscellaneous applications pending in this appeal, if any

shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date: 20th June, 2024.

Nsk.