Saphire Banquet Pvt. Ltd. v. Kolkata Municipal Corporation
2020-03-12
ARINDAM SINHA
body2020
DigiLaw.ai
JUDGMENT 1. The Court :- Mr. Surojit Dasgupta, learned advocate appears on behalf of petitioners and submits, demands by Letters of Intimation have been issued by the Corporation. His clients purchased seventh floor of the building in year 2015. The intimations contain particulars of arrears, demanded for period prior to the purchase as on re-assessment. He relies on judgement of co-ordinate Bench in Diamond Infotech Private Limited & Anr. Vs. Kolkata Municipal Corporation & Ors. reported in (2010) 3 CHN 190 (Cal) , paragraphs 8 to 11. Mr. Basu, learned advocate appears on behalf of the Corporation and submits, the writ petition is not maintainable as petitioner received notice of assessment, after which it was made. If petitioners are aggrieved, they must prefer appeal, which is efficacious statutory alternative remedy available to them. Without prejudice he relies on sub-section [4] in section 183, Kolkata Municipal Corporation Act, 1980 to submit, there should be no interference. Petitioners deliberately stayed away from the assessment proceeding. Now they are not entitled to move the writ Court. 2. In Diamond Infotech Private Limited & Anr. (supra) co-ordinate Bench was of view that on harmonious reading of provisions in Transfer of Property Act, 1882 and Kolkata Municipal Corporation Act, 1980, a purchaser is entitled to a right of hearing on recovery proceedings initiated by the Corporation, to recover taxes due on the property, where intimation of transfer was not given to the Corporation. As such petitioners are entitled to a right of hearing per the view. Furthermore, since petitioners alleged that re-assessment has been made pertaining to period, in which petitioners were not owner of the portion of the property, this right of hearing can be used by them to agitate such point. 3. On query from Court Mr. Basu submits, intimations include the assessments notified by assessment notices served on petitioners. The assessment notice clearly says with effect from 2n d quarter 2016-17 while the intimations contain demand for 1s t quarter in year 2005. Interference is warranted since petitioners right of hearing stood affected. The Corporations contention of petitioners having deliberately stayed away disentitling them cannot be accepted since there has been demand for prior period pursuant to notice of assessment for current period. 4. Mr. Basu relies on three decisions of Supreme Court on the writ petition not being maintainable where efficacious alternative statutory remedy is available. i) Ebrahim Aboobakar Vs.
The Corporations contention of petitioners having deliberately stayed away disentitling them cannot be accepted since there has been demand for prior period pursuant to notice of assessment for current period. 4. Mr. Basu relies on three decisions of Supreme Court on the writ petition not being maintainable where efficacious alternative statutory remedy is available. i) Ebrahim Aboobakar Vs. Custodian General of Evacuee Property, New Delhi reported in AIR 1952 SC 319 , paragraph 13. This decision dealt with interference by issuance of writ of certiorari on the authority acting without or in excess of jurisdiction. Interference here is on Court ensuring petitioners right of hearing, before the Corporation moves to recover on taxes, petitioner being a subsequent purchaser. ii) Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa reported in AIR 1983 SC 603 , paragraph 6. Facts in the case related to indirect tax assessment order, against which said Court recognised efficacious alternative statutory remedy by way of appeal to prescribed authority, then a second appeal to the Tribunal, after which to have the case stated to the High Court. Again this decision was not on the assessee having been deprived right of hearing. iii) Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors. reported in AIR 1985 SC 330 , paragraph 3. Following from the paragraph is reproduced below :- 'Art, 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.' 5.
We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.' 5. This writ petition has been dealt with at the hearing. There is no question of petitioners getting interim relief, for them thereafter to be able to prolong the proceedings. 6. Impugned Letters of Intimation are set aside and quashed. The Corporation will give petitioners hearing in respect of re- assessment pertaining to period before petitioners became owners of the property. The Corporation upon giving such hearing will follow through on recovery of taxes from petitioners in accordance with law. 7. It is made clear, in event the Corporation is able to segregate from set aside and quashed Letters of Intimation, intimation of demands relating to assessment made for years 2016-17, pursuant to notice, same can be re-intimated without giving hearing. If the Corporation also wants to re-assess for prior period, it will proceed as per direction above. 8. Further clarification is that the Corporation can reiterate earlier demands upon hearing and passing order demonstrating that those are not based on any re-assessment. The writ petition is disposed of.