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2010 DIGILAW 610 (RAJ)

Rampuriya Hotel Pvt. Ltd. v. State

2010-03-16

DINESH MAHESHWARI, JAGDISH BHALLA

body2010
JUDGMENT 1. This intra-court appeal has been preferred against the order dated 26.04.2002 passed in CWP No. 1631/2001 whereby the learned Single Judge declined to interfere in the assessment orders dated 05.03.2001 (Annex. 4 & 5) as passed by the Assistant Director, Land and Building Tax Department, Bikaner. 2. The petitioner-appellant submitted in the writ petition that only a part of the building in question was taken on rent by it for hotel purposes and the rest of the building was being used for residence; and that previously, the assessment was made for the purpose of the land and building tax and one time tax was paid by the owner of the building, as is evidenced from the document Annexure-1. The appellant essentially contended that one time assessment having been made and tax paid, that has been the complete discharge of the liability, yet a notice (Annex. 3) was received by the appellant for land and building tax assessment in response whereof it was submitted before the authority that one time tax having already been deposited, there was no liability of the appellant who was simply a tenant on a portion on the ground floor yet the authority concerned proceeded to pass the impugned assessment orders. The respondents contended that the demand notice (Annex. 1) was issued when the building was known to be used for residential purpose but when it was found that the appellant has been using the building for commercial purposes, the tax liability was assessed accordingly. 3. The learned Single Judge considered the matter in the impugned order dated 26.04.2002 and found that the question raised by the petitioner revolved around the fact as to whether the premises earlier taxed were residential or commercial that could not be determined in the writ petition. The learned Single Judge, therefore, observed that it would be appropriate if the petitioner was permitted to file an appeal before the appellate authority; and further ordained that the appellate authority would entertain the appeal on merits without raising the question of limitation. 4. Learned Counsel for the appellant has strenuously argued before us that after payment of one time tax, it was not open for the authorities to take up re-assessment proceedings while strongly relying upon the decision of the Division Bench of this Court in the case of DBCWP No. 55/1998 : East India Hotel and Anr. 4. Learned Counsel for the appellant has strenuously argued before us that after payment of one time tax, it was not open for the authorities to take up re-assessment proceedings while strongly relying upon the decision of the Division Bench of this Court in the case of DBCWP No. 55/1998 : East India Hotel and Anr. v. The State of Rajasthan and Ors. decided on 12.03.2201 . The learned Counsel further contended that availability of alternative remedy is not of absolute bar over exercise of writ jurisdiction by this Court. 5. We have noticed the peculiar features of this case where, as per the noting made on the document Annexure-1, the authorities accepted one time tax with the stipulation that upon depositing the amount of Rs. 8,200/-, further tax would not be required to be paid until existence of the current position Rs. 8200/-. The case of the department is that it was a case of change of user from non-commercial to commercial and thus, re-assessment as commercial was justified and authorised by law. It has not been a case where the authorities wanted to re-assess the tax liability with change of ownership. 6. In the given circumstances and looking to the questions involved, the learned Single Judge was justified in refusing to exercise writ jurisdiction and in relegating the appellant-petitioner to the statutory remedy of appeal. Moreover, the learned Single Judge, in the balance of equities, has observed that the appeal shall be considered on merits without raising the question of limitation. 7. Looking to the nature of dispute herein and the nature of order passed by the learned Single Judge, we find no ground to show interference in this intra-court appeal. 8. The appeal fails and is, therefore, dismissed. No costs.Appeal Dismissed. *******