BHASKAR BHATTACHARYA, J. ( 1 ) THIS application under Article 227 of the Constitution of India is at the instance of Kolkata Municipal Corporation and is directed against order dated 15th December, 2003 passed by the Municipal Assessment Tribunal, Kolkata in M. A. A No. 2793 of 2001 thereby disposing of an application filed by the opposite party No. 1 for condonation of delay in preferring the aforesaid appeal by holding that there was no delay in presentation of the same. ( 2 ) THE following facts are not in dispute: the opposite party No. 1 purchased the land in question from the previous recorded owner on 9th December, 1985 and thereafter on 21st April, 1988 filed an application for mutation. The Kolkata Municipal Corporation authority mutated the name of the opposite party No. 1 in place of the erstwhile owner on 10th December, 1988. Subsequently, on 17th December, 1988, i. e. within seven days from the date of mutation, the Municipal authority enhanced the valuation of the disputed property with effect from fourth quarter of 1985-86 to Rs. 41,760/- from the earlier valuation of Rs. 4364/ -. Such enhancement was not the outcome of a regular reassessment but of an intermediate assessment under section 180 (2) (i) of kolkata Municipal Corporation Act, as it then stood. Subsequently, there have been two regular reassessments at the interval of six years and against those reassessments, the Opposite Party No. 1 had preferred two different appeals being M. A. A. No. 2111 of 1988 and 2112 of 1998 which are pending. ( 3 ) DURING the pendency of the aforesaid two appeals, the opposite party no. 1 preferred M. A. A. No. 2799 of 2001 alleging that during the pendency of the aforesaid two appeals, it came to know by the first time that the aforesaid intermediate revaluation order dated 17th December, 1988 was passed. The memorandum of such appeal was accompanied by an application under section 5 of the Limitation Act for condonation of delay in preferring the appeal. ( 4 ) AS indicated earlier, by the order impugned herein, the Municipal assessment Tribunal has held that as opposite party No. 1 was not earlier supplied with any copy of the order dated December 17, 1988, the appeal was not time-barred. The application under section 5 of the Limitation Act was, thus, disposed of with the aforesaid observation. ( 4 ) AS indicated earlier, by the order impugned herein, the Municipal assessment Tribunal has held that as opposite party No. 1 was not earlier supplied with any copy of the order dated December 17, 1988, the appeal was not time-barred. The application under section 5 of the Limitation Act was, thus, disposed of with the aforesaid observation. ( 5 ) BEING dissatisfied, the Kolkata Municipal Corporation has come up with the present application under Article 227 of the Constitution of India. ( 6 ) MR. Das Adhikari, the learned Advocate appearing on behalf of the corporation has vehemently contended that an intermediate assessment passed in the year 1988 having been challenged after the lapse of thirteen years in the year 2001, the learned Tribunal below acted illegally and with material irregularity in allowing the application for condonation of delay. According to Mr. Das Adhikari, while allowing the application under section 5 of the Limitation Act, the Tribunal did not consider the well-settled principles which are required to be followed while allowing such application. Mr. Das adhikari further contends that the said application was filed with deliberate false statement regarding lack of knowledge inasmuch as the opposite party no. 1 was all along aware of the said intermediate reassessment and even paid tax on the basis of enhanced valuation. According to Mr. Das Adhikari, the opposite party No. 1 having come with unclean hand, the Tribunal below ought to have dismissed the application and consequently, the appeal should have been dismissed as barred by limitation. ( 7 ) IN support of the aforesaid contentions, Mr. Das Adhikari places strong reliance upon the following decisions of the Supreme Court: (a) 2000 (7) SCC 529 (Aligar Muslim University vs. Mansoor Ali Khan) (b) 2000 (2) SCC 48 (Municipal Council, Ahmednagar vs. Shah Hyder beig and Anr.) (c) 1993 (1) SCC 572 (Binode Bihari Singh vs. Union of India ). ( 8 ) MR. Ghosh, the learned counsel appearing on behalf of the opposite party No. 1 has opposed the aforesaid contentions raised by Mr. ( 8 ) MR. Ghosh, the learned counsel appearing on behalf of the opposite party No. 1 has opposed the aforesaid contentions raised by Mr. Das Adhikari and has contended that in view of the decision of this Court in the case of narendra Dev Narayan vs. Kolkata Municipal Corporation reported in AIR 2003 Calcutta 31, unless a copy of the assessment order enhancing earlier valuation was served upon the assessee, the period of limitation for preferring appeal against such decision did not start running at all. Mr. Ghosh contends that the learned Tribunal below rightly held that undisputedly no copy of the assessment order dated 17th December, 1988 having been served upon the opposite party No. 1, the appeal preferred by the said opposite party No. 1 was well within the period of limitation. Mr. Ghosh further contends that merely because the opposite party No. 1 paid the enhanced tax on the bass of reassessment without knowing the implication thereof, such fact cannot deprive the opposite party No. 1 of their right to prefer appeal. ( 9 ) MR. Ghosh contends that under the provisions of Kolkata Municipal corporation Act itself, even if an assessee wants to prefer appeal against any assessment order, he is required to pay the tax on the basis of enhanced valuation during the pendency of the appeal and as such there cannot be waiver of such right for mere payment of enhanced tax. Mr. Ghosh further contends that it is now apparent that the enhanced valuation was made in terms of a clause which was subsequently declared ultra vires the Constitution of India by this Court in the year 1995. Mr. Ghosh contends that by taking aid of an ultra vires provision the tax of the property cannot be enhanced. Mr. Ghosh further contends that the fact that mutation was effected on 10th december, 1988 itself suggests that assessment of revaluation on 17th december, 1988 was per se illegal without giving one month's notice required under the Kolkata Municipal Corporation Act. Mr. Ghosh contends that by the order impugned, the learned Tribunal has merely held that the appeal is not barred by limitation and as such the Corporation is free to agitate all questions on merit of the appeal before the Tribunal. He, therefore, prays for dismissal of this application. ( 10 ) IN reply to the aforesaid contentions Mr. Ghosh, Mr. Ghosh contends that by the order impugned, the learned Tribunal has merely held that the appeal is not barred by limitation and as such the Corporation is free to agitate all questions on merit of the appeal before the Tribunal. He, therefore, prays for dismissal of this application. ( 10 ) IN reply to the aforesaid contentions Mr. Ghosh, Mr. Das Adhikari submits that although the provisions contained in section 180 (2) (i) of the kolkata Municipal Corporation, as it then stood, was declared ultra vires in 1995, such declaration had prospective effect as held by a learned Single judge of this Court in the case of Joginder Singh and Ors. vs. Calcutta municipal Corporation reported in 1997 (2) CHN 403 and as such, the corporation did not commit any illegality in enhancing the valuation on the basis of 7. 5% of the consideration money paid by opposite party No. 1 at the time of purchase. Mr. Das Adhikari contends that no useful purpose will be served by hearing the appeal on merit, inasmuch as, under the then law the opposite party No. 1 was bound to pay tax on the basis of revaluation at the rate of seven and half percent of the consideration money by which the property was purchased. He, thus, prays for setting aside the order impugned. ( 11 ) AFTER hearing learned counsel for the parties and after going through the materials on record, I find that in view of the decision of this Court in the case of Narendra Dev Narayan vs. Kolkata Municipal Corporation (supra), right to prefer appeal under section 189 of the said Act accrued only on the service of a true copy of the order of assessment. There is no dispute that such assessment order has not been served upon the opposite party No. 1 and the appeal was preferred on the basis of order supplied subsequently to the opposite party No. 1 on the application for certified copy. Although Mr. There is no dispute that such assessment order has not been served upon the opposite party No. 1 and the appeal was preferred on the basis of order supplied subsequently to the opposite party No. 1 on the application for certified copy. Although Mr. Das adhikari tried to convince this Court that on an appeal preferred against the decision of this Court in the case of Narendra Dev Narayan (supra), an interim order of stay has been granted in that case by the Appeal Court, in my view mere pendency of an appeal or existence of an interim order in the said appeal does not destroy the effect of the said decision as a precedent. An interim order passed by a Court cannot be cited as a precedent. So long the said decision is not set aside by the Appeal Court, it cannot be said that the principles laid down therein has no value as a precedent. I am of the view that after coming into operation of the Assessment Rules, 1987, the corporation was bound under law to supply a copy of the assessment order free of cost and limitation runs from the date of service of copy of the assessment order as held in that decision. Therefore, the Tribunal below, in my view, rightly held that the appeal was well within the period of limitation. ( 12 ) REGARDING merit of the appeal, I do not propose to enter into the same in this application as the appeal is pending before the Tribunal for adjudication. Whether the assessment order was passed after service of notice required under law or whether the assessment order was valid will be decided in the appeal itself and as such, I refrain from entering into those questions. I, however, find no substance in the contention of Mr. Das Adhikari that simply because the provision contained in section 180 (2) (i) of the Act, as it then stood, was declared ultra vires in 1995, the petitioner can still get the advantage of illegal enhancement of valuation. I, however, find no substance in the contention of Mr. Das Adhikari that simply because the provision contained in section 180 (2) (i) of the Act, as it then stood, was declared ultra vires in 1995, the petitioner can still get the advantage of illegal enhancement of valuation. The Supreme Court in the case of Orissa Cement vs. State of Orissa reported in AIR 1991 SC 1676 , relied upon by a learned Single Judge in the case of Joginder Singh (supra), no doubt held that even if a taxing statute is declared ultra vires whether an assessee can get back refund of the tax paid on the basis of ultra vires provision of the statute depends upon the facts and circumstances of each case. But as pointed out by the Supreme Court in the subsequent case of somaiya Organics (India) Limited vs. State of U. P. reported in AIR 2001 SC 1723 , even if a statute is declared ultra vires prospectively, if the amount of tax is not realised, after declaration of the provision as unconstitutional, a state within the meaning of Article 12 of the Constitution of India, cannot further recover the unpaid tax on the basis of such ultra vires provisions for a period even prior to such declaration. Therefore, if a taxing statute is declared ultra vires with prospective effect, for that reason, the petitioner cannot recover the tax if not already paid and at the same time, taking advantage of that ultra vires provision, a State within the meaning of Article 12 of the constitution cannot go on recovering enhanced amount of tax on the basis of inflated valuation as a result of the application of the illegal provision of the statute even after the nullification of the statutory provisions by Court. ( 13 ) BE that as it may, this question is not relevant at this stage since the appeal is yet to be decided on merit and this point is kept open for decision and the Tribunal will take into consideration all the decisions including the subsequent ones on the aforesaid question at the time of disposal of appeal. ( 14 ) SINCE the Tribunal has held that the appeal is not barred by the limitation and this Court approves such view, the other decisions cited by mr. Das Adhikari on the question of condonation of delay become irrelevant. ( 14 ) SINCE the Tribunal has held that the appeal is not barred by the limitation and this Court approves such view, the other decisions cited by mr. Das Adhikari on the question of condonation of delay become irrelevant. I thus, do not propose to enter into those decisions in this application. ( 15 ) I, therefore, find no merit in this application and the same is dismissed. The learned Tribunal below is directed to dispose of the appeal on merit positively within one month. I make it clear that I have not gone into the merit of the appeal and it is for the Tribunal to decide whether intermediate assessment was made in accordance with law. The observations made herein as regards the right of an assessee to get refund, if any provision is declared ultra vires, should be treated as tentative and not binding on the Tribunal. ( 16 ) THE revisional application is, thus, dismissed. In the facts and circumstances there will, however, be no order as to costs. ( 17 ) THE interim order granted earlier stands vacated. Bhaskar Bhattacharya, J. : revisional application dismissed.