Judgment Tarun Chatterjee, J. This application under Article 227 of the Constitution has been moved against the judgment and/or order made by the Municipal Assessment Tribunal in Municipal Appeal No. 149 of 1991 dismissing the appeal filed under section 189 of the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") against an order passed by the Hearing Officer-IV, Calcutta Municipal Corporation (hereinafter referred to as "the Corporation") determining the annual valuation (apportioned share) of premises No.1 Crooked Lane, Calcutta at Rs.6,53,720/- in respect of the period commencing from the fourth quarter of 1986-87 affirming the order of the Hearing Officer. 2. The facts leading to filing of this application under Article 227 of the Constitution are as follows:- The petitioner is a registered partnership firm and at the material point of time, it was the owner of a space measuring about 6053 sq. ft. on the first floor (eastern block) in a two storied building (premises No.1 Crooked Lane, Calcutta). An agreement was produced by the petitioner before the Hearing Officer which was kept on record from which it appears that by the said agreement entered into by and between the petitioner and Bank of India. The Bank of India was inducted as a tenant under the petitioner in respect of the aforesaid space of the said premises. The said agreement provided inter alia, that the landlord would be paid a composite amount by the Bank. The case of the petitioner before the Hearing Officer as well as before the appellate tribunal was that this composite amount paid by the tenant included not only the rent but also a reasonable and fair compensation for some of the obligations which the petitioner agree to perform on behalf of the Bank viz. the following:- i) To pay the occupier's share of the consolidated rate determined by the Corporation so as to absolve the Bank from any obligation to reimburse the petitioner in respect thereof; From this condition, it is, therefore, an admitted position that the petitioner waived their right to recover the occupier's share of the tax from the Bank in terms of section 230(a) of the Act. ii) To pay commercial surcharge payable' by the Bank to the Corporation so as to absolve the Bank from any obligation to separately reimburse the petitioner in respect of payment of such commercial surcharge; iii) To render certain services such as provision for Guard, Sewerage, day to day maintenance etc. The said apportioned share of the said premises became the subject matter of inter mediate re-valuation under section 180(2) of the Act for the period commencing from the fourth quarter of 1986-87 and the annual valuation proposed in respect of the said apportioned share of the said premises for the said period was determined at Rs.6,53,720/- by the Hearing Officer of the Corporation on 10th March, 1988. Feeling aggrieved by this order, the petitioner preferred an appeal before the Municipal Assessment Tribunal (hereinafter referred to as the "Tribunal"). The Tribunal by the impugned order inter alia, came to a conclusion that there was no scope of deducting commercial surcharge or half of the consolidated rate as claimed by the petitioner before it. Accordingly, the Municipal Appeal filed before the Tribunal was dismissed. It is this order of the Tribunal which is now under challenge in this application under Article 227 of the Constitution. 3. We have heard Mr. P.K. Ghosh for the petitioner and Mr. Partha Bose for the Corporation. After hearing the learned counsel for the parties and after considering the judgment under appeal, I am of the view that a short question is involved for decision in this application which is as to whether in the determination of annual value under section 174, taxes paid by the owner on behalf of the tenant are to be deducted from the gross amount paid by the tenant to the owner for the purpose of computing "rental value" of the aforesaid premises and as to whether expenses incurred by the landlord in providing services and amenities to tenant are to be deducted in arriving at the said "rental value"? In my view, this application under Article 227 of the Constitution moved against the aforesaid appellate order of the Tribunal must succeed and the order impugned must be set aside. In my view, this application under Article 227 of the Constitution moved against the aforesaid appellate order of the Tribunal must succeed and the order impugned must be set aside. Reasons are as follows :- It is not in dispute that the petitioner out of the total amount of Rs.7,20,360/- received per year from the Bank as rent claim deduction of the average annual expenditure incurred on different accounts were as follows: Rs. 1. Maintenance expenses 13,693.00 (annually) 2. Electricity Charges for common area. 2,967.00 (annually) 3. Commercial Surcharge 1,30,744.00 (annually) 4. Half of total rates due in Occupier's share. 1,32,373.00 (annually) ___________________ Total : 2,79,782.00 (annually) According to the petition, the aforesaid amount spent for and on behalf of the Bank must be deducted in calculating the annual rent of the said premises. Mr. Ghosh, appearing on behalf of the petitioner submitted before me that in view of the two decisions of this Court reported in 69 CWN 237 (Corporation of India vs. M/s. Indian Exchange Ltd.) and the case reported in 73 CWN 961 (James Finlay and Company vs. Corporation of Calcutta) expenses incurred by the petitioner as landlord for providing amenities and facilities to the tenant (Bank) under the contract of tenancy should be deducted only from the monthly rent for the purpose of arriving at the "rent proper". Mr. Ghosh therefore, contended that annual value of the said premises ought to have been determined by the Hearing Officer only on the basis of the "rent proper". He further contended that the determination of Hearing Officer of the annual value of the said premises as affirmed by the Tribunal was illegal arbitrary and without jurisdiction as in determining the annual value of the said premises, both the Tribunals below acted in erroneous exercise of jurisdiction by taking as basis for such determination and inflated amount which was erroneously regarded as rent although the said amount included besides "rent proper" the consideration for the additional obligation taken by the landlord to be discharged on behalf of the Bank such as (a) occupier's share of consolidated rate (b) commercial surcharge and (c) expenses to provide the services and amenities. It was next contended by Mr. It was next contended by Mr. Ghosh that even though the Tribunal had dismissed the appeal of the petitioners but on similar facts situation judgments were delivered by the Tribunal in which the relief claimed by the petitioner as indicated above was allowed even though the appeals were under the Act. Some orders passed by the Tribunal in connection with the aforesaid point were also produced namely (1) MAA 6/1987 Subol Chandra Pal vs. Calcutta Municipal Corporation, (2) MAA 174/1999 S. Chatterjee vs. Calcutta Municipal Corporation and (3) MAA 454 of 1998 Dilip Mukherjee vs. Calcutta Municipal Corporation. 4. The contention so raised by Mr. Ghosh were hotly contested by Mr. Partha Bose the learned advocate for the Corporation. Mr. Bose, however, contended that the Tribunal had affirmed the finding of the Hearing Officer and came to a conclusion of fact by such affirmance and therefore, in the exercise of my power under Article 227 of the Constitution the orders passed by the Tribunal below cannot be interfered with. Before I deal with the aforesaid submissions of the learned counsel for the parties, it is necessary for me to deal with some of the provisions of the Act relating to the question posed before me. However, before proceeding further, I am to keep it on record that in so far as the expenses incurred by the petitioner in respect of Item No. I (maintenance expenses) and Item No. II (electricity charges for common area) are concerned, Mr. Ghosh conceded before me that those two amounts may not be deducted for the purpose of coming to a proper finding as to the "rent proper", as he submitted that in view of the smallness of this amount, he did not pray for such deduction. At this stage, however, it would be proper for me to state that so far as Item No. IV in respect of which deduction has been claimed by the petitioner that is rates (half of total rates due in occupier's share to the extent of Rs.1,32,378.00 annually) ought to have been deducted by the Tribunal in arriving at a proper rental value of the premises in question for the period involved in proceeding before the Tribunal. In view of the aforesaid concession of the learned counsel for the parties before me in this application under Article 227 of Constitution, I am not inclined to go into the question whether the maintenance expenses and electricity charges for the area would not be deducted for the purpose of coming to a proper finding as to the "rent proper" and in view of the concession made by Mr. Basu, therefore, Rs.1,32,378/- should also be considered to be the amount which should be deducted from the annual value of the premises in question. Such being the stand taken by the parties before me, the only question that needs to be decided now whether the petitioner is entitled to deduct commercial surcharge paid by it on account of user of the premises in question or not. 5. Mr. Basu, appearing on behalf of the Corporation submitted that in the decision cited by the petitioner in support of his contention that commercial surcharge was also liable to be deducted for the purpose of coming to a proper annual valuation of the premises in question, the principles laid down in the two decisions cited by Mr. Ghosh for the petitioner were delivered in terms of the Calcutta Municipal Act, 1951 which has already been repealed by the introduction of the Calcutta Municipal Corporation Act, 1980. According to Mr. Basu as section 174 of the Calcutta Municipal Corporation Act, 1980 clearly says that the gross annual rent include service charges and in view of the admitted fact that in the agreement itself, there is no condition containing that the Bank was liable to pay commercial surcharge to the petitioner, question of deducting the amount paid on account of commercial surcharge cannot arise at all. In order to appreciate this submission of the learned counsel for the parties, it would be proper for me to deal with the relevant provisions of the Calcutta Municipal Act, 1980. 6. Under the Calcutta Municipal Corporation Act, 1980 (hereinafter referred to as "the Act") "consolidated rate" is one of the taxes that to be levied by the Corporation as laid down in section 170 of the Act. Section 171 of the Act provides that a consolidated rate on the annual valuation determined under Chapter XII of the Act shall be imposed by the Corporation. Section 171 of the Act provides that a consolidated rate on the annual valuation determined under Chapter XII of the Act shall be imposed by the Corporation. The annual valuation which is the basis of the consolidated rate is to be determined under section 174 of the Act. From a plain reading of the provisions of section 174 of the Act, it appears to me that section 174 of the Act contemplates different methods for determination of annual valuation of land and building. Sub-section (1) of section 178 deals with "rental method of valuation." According to this method, the annual valuation of any land or building shall be deemed to be gross annual rent including service charges, if any at which land and building in question might at the time of assessment "be reasonably expected to let from year to year. "A provision is also there for deduction of 10% as standard deduction for cost of repairs and other expenses necessary to maintain such building in a state to command such gross rent. Therefore, this means that a rent which a hypothetical tenant will be willing to pay to the landlord should form the basis of determination of annual value. It is also an admitted position that under section 174(1) of the Act, annual value is to be determined on the basis of notional rent at which the premises might be reasonably expected to be let from year to year to a hypothetical tenant. The test of reasonableness of the gross annual rent which the landlord may expect to realise if the house is let out to a hypothetical tenant is the rent which may be determined at the higgling of the market in a bargain between a willing lessor and willing lessee, uninfluenced by any extraneous consideration. This principle of English law was adopted in India in several decisions of the Supreme Court. Reliance can be placed in the case of Corporation of Calcutta vs. Smt. Padma Devi, AIR 1962 SC 151 , Dewan Daulat Rai Kapoor vs. New Delhi Municipality, AIR 1980 SC 541 and also Balbir Singh vs. Municipal Corporation Delhi, AIR 1985 SC 339 . Reliance can be placed in the case of Corporation of Calcutta vs. Smt. Padma Devi, AIR 1962 SC 151 , Dewan Daulat Rai Kapoor vs. New Delhi Municipality, AIR 1980 SC 541 and also Balbir Singh vs. Municipal Corporation Delhi, AIR 1985 SC 339 . A Division Bench of this Court in the case of Corporation of Calcutta vs. East India Commercial Company, AIR 1982 Cal 479 , hold that where the premises is actually let out to a tenant, the contractual rent may be regarded as the fair rent which, the assessing authority may take into consideration in arriving at the reasonable rent that a hypothetical tenant would agree to pay to the landlord. Thus it is only for this purpose of assessing the notional rent that the actual rent becomes relevant. Ordinarily, whether a premises is let out, or self occupied by the owner or left vacant, the enquiry to be made under section 174(1) of the Act for determination of annual value is, as to what is the rent which the landlord may reasonably expect to get from a hypothetical tenant if the premises were to be let out to a hypothetical tenant. Ordinarily, such enquiry would involve the finding of the comparative rent prevailing in the area for similar premises and coming to a figure of notional rent on the basis of such data. But such an exercise may not be necessary, if the premises in question is actually let out. Unless the contrary is shown, it may ordinarily be presumed that the rent currently being paid by the actual tenant will be the nearest approximation to the notional rent which a hypothetical tenant will pay. But in adopting this method of determining the notional rental value on the basis of contractual rent care has to be taken to identify the "rent" stricto sensu and to leave out other payments made by the tenant to the landlord in a given case. The word "rent" has not been defined in the Municipal Act. The concept of rent under the Transfer of Property Act is that of a periodic payment made by the lessee to a lessor as compensation for the exclusive use and occupation of the premises. Therefore, if we follow the concept of the word "rent" under the Transfer of Property Act, the word "rent" is to be understood as something akin to this. Therefore, if we follow the concept of the word "rent" under the Transfer of Property Act, the word "rent" is to be understood as something akin to this. "Rent" for the purpose of a special statute like West Bengal Premises Tenancy Act, 1956 may include all payments agreed to be paid by the tenant to the landlord. For this, reliance can be placed to a decision of the Supreme Court in the case of Puspa Sengupta vs. Sushama Ghosh, 1900(2) SCC 651. But this special concept of rent is not relevant here. This wider concept of rent has been introduced under that special statute so as to ensure that the landlord gets all the agreed dues from the tenant who enjoys the protection of the Act. But for the purpose of Municipal Tax, "rent" must have a narrower connotation in keeping with the meaning of the word. It must be payment only for the purpose of use and occupation of the land and building and nothing else. Otherwise the base of the tax will be widened. That will make the tax unconstitutional, in view of the constitutional constraint over legislative power of the State Legislature. Entry 49 of the List II of the 7th Schedule enables the State Legislature to impose a tax only on land and building and not on anything else. Obviously the legislative field cannot be unnecessarily widened by an expansive interpretation or any legal fiction. 7. In any view of the matter, in view of the non-obstantic clause in section 174 of the Calcutta Municipal Corporation Act, 1980 the "rent" cannot be understood, as contemplated in West Bengal Premises Tenancy Act for the purpose of determination of annual value of a premises. When the annual value is to be determined on the basis of the contractual rent, care must be taken to exclude from the gross payment made by the tenant to the landlord, any such amount which may not strictly relate to the use and occupation of the premises. According to the terms of the contract, a tenant may agree to pay to the landlord in a given case various amounts such as electricity charges, charges for amenities and services, charges for security and other provisions and may even pay for enjoying the facility of telephone, Cable T.V. etc. According to the terms of the contract, a tenant may agree to pay to the landlord in a given case various amounts such as electricity charges, charges for amenities and services, charges for security and other provisions and may even pay for enjoying the facility of telephone, Cable T.V. etc. But it would be wrong to include these amounts in the computation of annual value because the annual value the basis for imposition of municipal tax, anything that is not directly related to land and building should not come within the purview of the said assessment. As already noted herein-earlier, the tax in question is a tax under Entry No. 49 of List II of the 7th Schedule viz. a tax on land and building. Therefore, anything that is not strictly a payment in respect of use and occupation of the land or building should not be included in the computation. In this connection reliance can be placed on the Halsbury's Laws of England, Fourth Edition, Volume 39, dealing with Rating which are follows:- "The hypothetical rent is to be estimated in the case of all hereditaments on the assumption that the tenant pays all tenant's rates and taxes. If, therefore, an actual rent is used as a basis for calculating the hypothetical rent of a hereditament and that rent includes such a rate, a deduction must be made from it; and for this purpose the amount to be deducted must be ascertained irrespective of the fact that, in paying the rate, the landlord receives an allowance or abatement. The amount to be deducted must be ascertained by reference to the hypothetical rent payable by the hypothetical tenant and not by reference to the actual rent and by reference to the assessment being ascertained, not the previous assessment." (Emphasis supplied) In paragraph 115 of the same Volume of Halsbury the following passage occurs under the caption "Actual Rent as evidence of value":- "The actual rent paid for the hereditament is not conclusive evidence of value. However, where the hereditament is let at what is plainly a rack rent, that rent is the best evidence of value always provided that it was recently fixed by the 'higgling of the market'. However, where the hereditament is let at what is plainly a rack rent, that rent is the best evidence of value always provided that it was recently fixed by the 'higgling of the market'. If the actual rent is paid on terms which differ from these of the hypothetical tenancy it must be adjusted if possible, to the terms of the hypothetical tenancy before it affords evidence of value. Such adjustments may be necessary to allow, for example, for the burden of rates and taxes the burden of repairs, the length of the lease or the provision of landlord's services. Rents paid for comparable hereditaments are relevant evidence, subject to similar considerations. The classes of hereditaments which in practice are most commonly valued by reference to rents are shops, offices, warehouses and other commercial premises and dwelling houses." (Emphasis supplied) 8. Corporation of Calcutta vs. India Exchange Ltd., 69 CWN 237, it was held by a Division Bench of this Court that before the annual value of a building can be determined, the true gross annual rent should be determined and for determining the same, there should be a deduction from the gross rent a sum towards payment of the services and amenities provided by the landlord in the facts and circumstances of the case. It is evident from the aforesaid decision that in the last but one paragraph, a deduction has been made of 113/4% on the finding that such gross annual rent includes the occupier's share of Corporation tax. Therefore, it is obvious that one half of the total tax was deducted from the rental value in computing the annual value, when the landlord pays the tenant's share of the tax. In James Finaly vs. Corporation of Calcutta, 73 CWN 961, a Division Bench of this Court presided over by P.N. Mookherjee (as His Lordship then was) held that if the statute provides that the annual valuation is to be assessed on the hypothetical fair rent, then in the absence of any material relevant on the point, the actual rent may be a good index of hypothetical fair rent. However, if the tenant enjoys any additional advantage then a portion of the rent must be attributed to that additional advantage. Therefore, a reasonable deduction has to be made from the amount paid as rent a compensation for the additional advantage. However, if the tenant enjoys any additional advantage then a portion of the rent must be attributed to that additional advantage. Therefore, a reasonable deduction has to be made from the amount paid as rent a compensation for the additional advantage. When the amount paid by the tenant to the landlord is so adjusted or reduced aforesaid one may arrive at what may be regarded as rent of the premises for the purpose of municipal assessment. 9. It is true that according to the scheme of the said Act, the owner is required to pay the entire consolidated rate as also commercial surcharge to the Corporation, but the owner may recover from that tenant 1½ of the consolidated rate so paid and the whole of the commercial surcharge. These provisions has been made in sections 193 to 195 of the Act. Under section 230(a) of the Act, the owner may recover from the occupier half of the consolidated rate so paid and under sub-section (b) of section 230, the entire amount of surcharge may be recovered by the landlord from the occupier. This means that the incidence of tax is on the occupier, so far as one half of the consolidated rate and the entire amount of commercial surcharge, are concerned. But the collection is made at the first instance from the owner and the owner is given the right to recover the same from the occupier. According to the scheme of the Act, although the initial collection of the entire tax is made from the owner of the premises the law however, has not imposed the entire burdon on the owner. Under the Calcutta Municipal Act, 1951 the Rate Bills were issued in two halves - one was called the "owner's share" and the other was called the "Occupier share". But under section 200 of the said Act in certain circumstances, the entire tax (both shares) used to be collected from the owner. Owner was given the right to recover the occupier's share of tax from the occupier's. What was a special situation under section 200 of the Old Act has become the present general system. For administrative reasons, it was found more convenient for the Corporation to collect the entire tax from the owner who has been made "primarily liable." But the owner has been given the right to recover one-half of the tax from the occupier. For administrative reasons, it was found more convenient for the Corporation to collect the entire tax from the owner who has been made "primarily liable." But the owner has been given the right to recover one-half of the tax from the occupier. In all assessments under the Old Act, whenever the landlord used to pay the occupier's share of tax without any recovery, a deduction of 113/4 or 163/4 used to be made while computing the annual value of a building. As regards the commercial surcharge, it is a tax the whole of which is to be paid by the occupier who uses the premises or portion thereof for nonresidential purpose. But here again, the commercial surcharge is payable at the first instance by the owner and he has been given the right to recover the same from the occupior. There is nothing in the Act which can stand in the way of an inter se arrangement or agreement between the landlord and the tenant in the matter of payment of tax or recovery thereof. When such composite payment is made by the tenant, it would be wrong to treat the entire amount as rent, if rent is taken to be the payment for the use and occupation of the premises. Rent has to be determined from the said composite payment by deducting the quantum of all out of pocket expenses of the landlord including the taxes paid by him on behalf of the tenant from out of that composite amount. In all tax laws, it is important to determine the actual base of the tax. For this, it becomes necessary to deduct elements which are not relevant to the tax so as to arrive at the net taxable base. If the municipal tax is payable on the rental value of the premises and the tenant pays a composite sum to the landlord which includes, besides the "rent proper" charges for provision of services and amentities, charges for electricity and also the tax payable by the tenant, then the "rent proper" has to be arrived at by deducting from the composite sum the cost of providing services and amentities, the electricity bill amount and the amount of tax which in law the tenant is obliged to pay, but in fact the landlord pays on his behalf. Taking these principles as discussed above, in mind, I find that in the instant case by an agreement, the owner has taken upon itself the liability to pay the owners as well as the occupier's share of tax. The owner is also paying the commercial surcharge on behalf of the tenant. This would appear from the agreement dated 26th June, 1984 and also from the evidence of A.W. 1. It would also appear from the judgment of the Assessment Tribunal that the Tribunal refused to allow any deduction on amount of these payments made by the landlord on behalf of the tenant on the following grounds: "If the appellant by contract agrees to relinquish his that right, i.e. right to recover the amount from the tenant then it is a matter between the appellant and his tenant and the existence of contract if any, does not and cannot absolve the appellant from the primary liability of paying consolidated rate." 10. In my view, the Tribunal had acted illegally in the exercise of its jurisdiction by holding that if by an inter se arrangement, the landlord has taken upon himself the entire burden of tax payable by the tenant then i.e. of not concern to the Assessing Authorities. The question is not as to whether the landlord having agreed to relinquish the right to make recovery can be absolve of his primary liability as erroneously held by the Tribunal. Indeed the landlord still remains liable to make the initial payment of tax as "the person primarily liable" to make payment. But that should not affect the determination of annual value which has to be made only on the basis of the "rent proper". The moot question is, when the landlord actually does not make any recovery by virtue of the contractual arrangement and bears the entire burden of the tenant's tax, what is the actual rent that the landlord is getting? There is no dispute that the landlord is getting an amount as a composite payment from the tenant. If from out of that amount, the landlord has to bear the tenant's tax burden then the actual rent received by the landlord must be held to be composite payment less the tax burden paid by the landlord. There is no dispute that the landlord is getting an amount as a composite payment from the tenant. If from out of that amount, the landlord has to bear the tenant's tax burden then the actual rent received by the landlord must be held to be composite payment less the tax burden paid by the landlord. As already stated above, in order to determine the hypothetical reasonable rent on the basis of the contractual rent, it is necessary to determine the element of "rent proper". In view of a contract between a landlord and a tenant, a tenant may agree to pay to the landlord a composite amount which includes besides "rent proper" other payments on account of tax, electricity etc. But to arrive at the annual value on the basis of rent only the "rent proper" is to be taken into consideration and not the other amounts paid by the tanant. This is because a hypothetical tenant will only pay the rent proper and will not pay other amounts as actually paid by the existing tenant. It is significant to note that the law creates a legal fiction only with regard to the payment of rent and not with regard to payment of other amounts. The Calcutta Municipal Corporation Authorities have not allowed any deduction on account of the occupier's share of the consolidated rate on the misconceived plea that under the provisions of the Calcutta Municipal Corporation Act, 1980 there is only one Rate Bill which is sent to the owner and unlike the provisions of the old Act, no separate bill in respect of the occupier's share is issued. In my view, this principle adopted by the Corporation Authorities is wholly erroneous. It would be evident from the provisions of the Act, that when the owner pays the entire consolidated rate, the owner pays half of the said tax as his own liability and pays the remaining half on behalf of the occupier being entitled to recover the said amount from the occupier. Therefore, there is no difficulty in saying that in so far as the liability to pay tax is concerned, the liability of the owner is restricted to only one half of the consolidated rate and the other half is payable by the occupier. Therefore, there is no difficulty in saying that in so far as the liability to pay tax is concerned, the liability of the owner is restricted to only one half of the consolidated rate and the other half is payable by the occupier. But instead of collecting the half directly from the occupier, the Corporation, for convenience, collects it through the owner, in the same manner in which a revenue authority collects an indirect tax from one person and allows him to pass on the burden to another person on whom is the real incidence of the tax. With regard to commercial surcharge and the liability to pay the same, as also the right of recovery of the owner from the occupier of the amount of surcharge paid by the owner on behalf of the occupier, reliance can be placed in the case of Satish Chandra Agarwala vs. State Bank of India, 1988 (1) C.L.J. 536 and in the case of Roma Sur vs. State of West Bengal, 95 CWN 1. It is well known that no landlord will gratutiously bear the tax burden of the tenant, nor any landlord will be so benovolent , as to give us his statutory right to recover the payment made by him to the Corporation on behalf of the tenant. When in a particular case the landlord and tenant enter into a transaction whereby the landlord voluntarily abandons his right to recover the taxes paid by him on behalf of the tenant and the tenant is relieved of the obligation to pay taxes on condition that he would pay a lump sum amount to the landlord, the necessary inference must arise that the said lump sum amount contains not only the "rent proper" but also the amount to equivalent to the tax burden of the tenant which the landlord takes upon himself to pay. Therefore, in such a situation in order to arrive at a reasonable rent that a hypothetical tenant will be willing to pay to the landlord the amount of the tax burden of the tenant should be deducted. Otherwise an inflated amount will be taken as "rent" which will include not only the "rent proper" but also the tax. Therefore, in such a situation in order to arrive at a reasonable rent that a hypothetical tenant will be willing to pay to the landlord the amount of the tax burden of the tenant should be deducted. Otherwise an inflated amount will be taken as "rent" which will include not only the "rent proper" but also the tax. If the tax paid by the owner on behalf of the occupier to the Corporation is not deducted from the composite payment received by the owner from the occupier, then there would be the vice of imposition of a tax on tax. Because the composite payment is already loaded with the element of tax. If the whole of this composite amount is treated as the taxable base for determination of annual value and the tax is imposed thereon, then obviously instead of there being a tax on the rental value there will be a tax on rental value plus the tax itself. In this connection it may by fair on my part to refer to the Principles and Practice of Valuations by John A. Parks, Fourth Edition page 40 where the learned author has pointed out under the caption Gross Rent as follows:- "The actual rents paid are guide to a valuation, but must not be adopted for the purpose unless they have been checked by rents of similar premises in the locality. Actual rents also must be carefully scrutinised to see what services they include. Some rents are inclusive of taxes others include occupier's taxes only whilst some are exclusive of all taxes." (Emphasis added) 11. This matter can also be looked into from another angle. Let us take an example. Suppose in a given case, the tenant is made to pay the tax on behalf of the landlord what would be the effect of that payment? Under the provision of the West Bengal Premises Tenancy Act, it is now well settled that such amount paid by the tenant for the landlord in respect of the tenanted premises must be adjusted against the rent payable by the tenant to the landlord if such payment was made involuntarily. But if such payment was made voluntarily then the total quantum of rent receivable by the landlord will include that payment also for the purpose of municipal assessment. But if such payment was made voluntarily then the total quantum of rent receivable by the landlord will include that payment also for the purpose of municipal assessment. This is the view expressed by this Court in the case of Sushantiram Vinod Kumar vs. Vijay Lakshmi Jaiswal, 87 C.W.N. 368. In the above decision, a learned Judge of this Court observed as follows:- "The position is different where the payment allegedly made by the tenant is on account of the owner's share of taxes as in these cases. Therefore, it could not be said that the payment was voluntarily made by the tenant and as such the tenant cannot be referred to a separate proceeding for being reimbursed in view of the provisions of the Calcutta Municipal Act itself. Sub-section (4) of section 246 of the Act provides that if any sum is paid by or recovered from any occupier or sub-tenant under this section he shall be entitled to deduct the same from the rent payable by him in respect of such land or building for the period for which the arrear of consolidated rate was due, or for any subsequent period. Keeping this section in view and the positive averment of the defendants that they were compelled to pay the sum under a distress warant, I am of the view that the defendants are entitled to claim adjustment of the sum so paid on account of the landlord." 12. So far as this case is concerned, this is the converse of the aforesaid decision. In the instant case by an agreement between the landlord and the tenant, the landlords took upon themselves the tenant's tax burden by agreeing to bear the burden of payment to the Corporation the occupier's share of consolidated rate as also the commercial surcharge. Although under the said Act initial liability to pay those taxes on behalf of the occupier is upon the landlord but the statute gives the landlord the right to recover the same from the tenant. In the instant case because of contractual terms between the parties; the landlord after paying the said taxes to the Corporation on behalf of the tenant would not be entitled to claim any reimbursement from the occupier. In the instant case because of contractual terms between the parties; the landlord after paying the said taxes to the Corporation on behalf of the tenant would not be entitled to claim any reimbursement from the occupier. Thus in the instant case, what the tenant pays to the landlord may be losely called "rent" yet the same is actually a composite amount which includes besides "rent proper" a fair compensation for the said additional obligations of the landlord. No reasonable rent can include the said amounts which are paid by the tenant in the instant case to the landlord for the landlord having taken some additional obligations on his behalf. So the "rent proper" has to be determined by deducting from the so called rent the amount of the said tax which the landlord pays on behalf of the tenant. From what has been stated above it is evident that what is paid by the tenant to the landlord towards payment of taxes to the Corporation by the landlord on his behalf can never be considered as income to the landlord but the same at best can regarded as the cost to the tenant. On the logic, what can not be the income of the landlord cannot be a rent realisable by a landlord from the tenant and as such, the same cannot form the basis for determination of the annual value. Hypothetical tenancy, which is the basis for determination of consolidated rate under the said Act, has some special features. A hypothetical tenant will only get the right to occupy the premises in question and he will pay for the same to landlord. Neither the landlord will take any extra burden nor the tenant will agree to make any extra payment. Therefore, the rent paid by a hypothetical tenant to the landlord for occupation of his tenancy cannot include any additional amount which the tenant may pay to the landlord for discharging the tenant's obligation of payment of taxes to the Corporation by the landlord on behalf of the tenant. Therefore, the rent paid by a hypothetical tenant to the landlord for occupation of his tenancy cannot include any additional amount which the tenant may pay to the landlord for discharging the tenant's obligation of payment of taxes to the Corporation by the landlord on behalf of the tenant. Therefore, it is pellucid from the discussions made herein above that for determination of consolidated rate under the said Act "rent proper" is to be determined, and for such determination the true element of rent is to be calculated after deducting the occupier's share of tax and commercial surcharge from the composite amount paid by the tenant to the landlord under a special contract whereby the tenant has agreed to pay to the landlord for discharging some obligations to the Corporation by the landlord on behalf of the tenant. The matter can be looked into from another angle. The consolidated rate is a tax which is to be imposed on land and building. Necessarily the basis for the imposition of consolidated rates must clearly reflect the rental value of the land and building shorn of any other element. The rental value of the land and building must not contain anything other than the "rent proper". For example, it must not contain the electricity charges or any tax or any payment for amenities. Otherwise, in the guise of imposing a tax on land and building a tax may be imposed on things other than land and building, such as electricity, or amenities or it may be a tax on tax. This would lead to the invalidity of the impost in view of the incompetence of the legislature to ompose a tax on anything other than land and building under the particular legislative entry, namely, Entry No. 49 of List II of the 7th Schedule of the Constitution. Unless the expression "reasonable rent" as contemplated in section 174(1) of the said Act is given such a restricted meaning as to include only that amount which is the charges payable by the tenant to the landlord for his right to occupy the premises, the expression "reasonable rent" will include extraneous elements which will be inconsistent with the legislative competence as provided by the Constitution in Entry No. 49 of List II of the Seventh Schedule. Furthermore, if any amount besides "rent proper" is included within the ambit of hypothetical reasonable rent, as used in section 174(1) of the said Act, the determination of Annual Value on the basis of such an amount is bound to be inflated, arbitrary and without jurisdiction. It is a well settled principle of legislative interpretation that the law should be so construed as to save it from being ultra vires. It is again an accepted principle of law that although legislative entries should be widely construed so as to fully give effect to the meaning of a particular legislative entry, it is also true that no entry should be so construed as to encroach on another entry and no statute should seek to transcend the legislative entry under which it is made sought to be. In the case of New Manek Chowk Mills vs. Ahmedabad Municipal Corporation, AIR 1947 SC 1801 and in the case of Government of Andhra Pradesh vs. HMT, AIR 1975 SC 2037 , it was held that the power to levy tax on land and building cannot be so interpreted as to extend the power of taxing land and building to impose a tax on machineries and furniture situated on the land or building. In the well known case of Gannon Dunkerley vs. State of Madras, AIR 1958 SC 560 , it was held that the legislature cannot by a legislative device seek to extend its own legislative domin nor can the legislature step in outside the defined legislative field. Therefore, in the guise of imposing a tax on land and building the legislature cannot seek to impose a tax on anything other than land and building as it is ordinarily understood in plain and simple language. When the landlord provides services to the tenant he does so, not gratutiously, but as a part of an organised business activity. To impose a tax on such business activity would be encroaching upon the legislative domain of the Union Legislature because that would be in the nature of income tax. In the guise of imposing a tax on land and building under Entry 49 List II of the 7th Schedule, the State Legislature cannot tax a business activity. To impose a tax on such business activity would be encroaching upon the legislative domain of the Union Legislature because that would be in the nature of income tax. In the guise of imposing a tax on land and building under Entry 49 List II of the 7th Schedule, the State Legislature cannot tax a business activity. Reliance in this connection can be placed to a decision of the Supreme Court in the case of Karnani Properties Ltd. vs. Commissioner of Income Tax, 1971 (3) SCC 568 ITR 547. 13. In view of my discussions made hereinabove, the determination of Annual Value of the premises in question with effect from 4th Quarter 1986-87 will be lawful and valid if the same is reduced to Rs.4,01,704/- as per the calculations below:- Rent Rs.60,510/- X 12 Rs.7,26,120.00 Less: (i) Rates paid for the tenant as per Tenancy Agreement: a) Commercial surcharge Rs.1,30,744.00 b) Rates - Half of total rates due on occupier's share Rs.1,32,372.00 (ii) Maintenance expenses Rs.13,693.00 (iii) Electricity charges for areas occupied by the tenant and for the common areas Rs.2,967.00 Rs.2,79,782.00 Annual valuation should be Rs.4,45,338.00 Less..... Rs.44,634.00 _____________ Rs.4,01,704.00 14. In view of the aforesaid discussions made hereinabove, the judgment and order of the Tribunal should be set aside in part and the annual value of the premises in question should be determined at Rs.4,01,704.00/-. 15. For the reasons aforesaid, this application is allowed to the extent indicated above. The impugned order of the Tribunal is set aside to the extent indicated above. 16. There will be no order as to costs. Prayer has been made on behalf of the respondent asked for stay of operation of this judgment. Considering the facts and circumstances of this case, I refuse such stay. Accordingly, the prayer for stay is refused. Application allowed.