Rajasthan High Court - Jodhpur
Saint Patrick S Vidhya Bhawan & Anr vs State & Ors on 23 April, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
1
(1)-S.B. CIVIL WRIT PETITION NO.12517/2015
Saint Patricks Vidhya Bhawan & Anr. vs. State of Rajasthan & Ors.
(2)-S.B. CIVIL WRIT PETITION NO.2675/2015
Chtholic Diocesan Edu. Society & Anr. v. State of Rajasthan & Ors.
(3)-S.B. CIVIL WRIT PETITION NO.3332/2015
Roman Catholic Diocesan Edu. Society & Anr. v. State of Rajasthan & Ors.
(4)-S.B. CIVIL WRIT PETITION NO.12703/2015
St. Pauls Seni. Seco. School, Chittorgarh vs. State of Rajasthan & Ors.
(5)-S.B. CIVIL WRIT PETITION NO.14681/2015
Jai Narayan Vyas University, Jodhpur v. State of Rajasthan & Anr.
(6)-S.B. CIVIL WRIT PETITION NO.1362/2016
Nav Shiksha Samaj, Jodhpur v. State of Rajasthan & Ors.
(7)-S.B. CIVIL WRIT PETITION NO.1680/2016
Cambridge Shiksha Sansthan v. State of Rajasthan & Ors.
(8)-S.B. CIVIL WRIT PETITION NO.1766/2016
Marwar Muslim Education v. State of Rajasthan & Ors.
Date of Order :: 23.4.2016
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Akhilesh Rajpurohit ) for the petitioner/s.
Mr. Kuldeep Mathur )
Mr. Mukesh Maheshwari)
Mr. Mukesh Rajpurohit )
Mr. S.S. Rathore for ) for the respondent/s.
Dr. P.S. Bhati )
Mr. Sunil Purohit )
Dr. Pratishtha Dave )
Mr. C.S. Kotwani )
Mr. Deva Ram Suthar, Dy. Commissioner (Revenue), Municipal
Corporation, Jodhpur.
Mr. Siddarth Charan, Legal Officer, Municipal Corporation,
Jodhpur.
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These writ petitions have been filed by the petitioners inter-alia challenging the action of the respondents in demanding / assessing / recovering the Urban Development Tax from the petitioner-institutions.
2The applicability of the Urban Development Tax is questioned based on the notifications issued under the provisions of the Rajasthan Municipalities Act, 1959 ('the Act of 1959') and specifically the exemption provided under Section 107(4) r/w Explanation-I to Section 107 of the Act of 1959.
Reliance was further placed on language of notification dated 31.8.2015 (Annex.R/3/1) in SBCWP No.12517/2015.
From a bare perusal of the material available on record and the provisions of Section 104 r/w Section 107 of the Act of 1959 and notification dated 29.8.2007 (Annexure-4 to WP No.12517/2015), it is apparent that in view of express provision of Section 107 of the Act of 1959, which provides for exemptions from taxation including from levy of tax in respect of lands and buildings used for charitable purpose under sub- section (4) and charitable purpose has been explained as including relief of the poor, education and medical relief, the Urban Development Tax could not have been charged from the petitioners-institutions under the Act of 1959. Any demand raised / assessment passed / tax recovered under the Act of 1959, therefore, cannot be sustained and is, therefore, set- aside.
However, the position has undergone a sea change with the coming into force of Rajasthan Municipalities Act, 2009 ('the Act of 2009'), wherein the provisions which are now contained in Section 107 of the Act of 2009, does not provide for exemption for places being used for charitable purposes and no explanation and / or definition which can exempt the institutions like the 3 petitioner-institutions has been indicated in the Act of 2009. The very fact that the legislature has deleted the said exemption as was available under the provisions of Section 107 of the Act of 1959, necessarily means that the exemption which was available under the Act of 1959 ceased on coming into force of the Act of 2009.
Though learned counsel for the petitioners placed reliance on the provisions pertaining to repeal and savings, Section 344 of the Act of 2009 clearly provides that the actions, notifications etc. issued under the repealed enactment i.e. the Act of 1959, in so far as the same are not inconsistent with the provisions of the Act of 2009, shall be deemed to have been issued under the Act of 2009.
The very fact that exemption as available under the Act of 1959 has been consciously taken away by the legislature under the Act of 2009, the said exemption under the Act of 1959 / notification issued under the Act of 1959 being inconsistent cannot be relied on by the petitioners for seeking exemption and therefore, with the coming into force of the Act of 2009, the petitioners' claim of exemption as raised in the writ petitions cannot be sustained.
During the course of submissions made by learned counsel for the parties, it was noticed that certain notifications issued by the respondent-State prescribing for the rate of Urban Development Tax have not been taken into consideration by the respondents while assessing the petitioners and/or issuing notices to them raising demand for payment of Urban 4 Development Tax.
Learned counsel for the respondents submit that the applicability of the notifications (Annex.21) are not in dispute and the respondents are duty bound to follow the said notifications while assessing the petitioners and wherever the assessment have taken place / notices have been issued contrary to the said notifications, the respondents would rectify the same and assess/reassess the petitioners in terms of the said notifications.
Learned counsel appearing for the petitioners submit that even under the notifications, the rates prescribed are based on whether the institution is a 'professional and technical educational institution' or other than the said professional and technical educational institution and the said determination also is required to be made by the respondents before assessing the petitioners based on the said notifications.
In view of the above, wherein the liability to pay the Urban Development Tax under the provisions of the Act of 2009 has been found against the petitioners herein-before and the fact that the respondents have undertaken before this Court to assess / re-assess the petitioners under the notifications issued by them, the petitioners may appear before the respondents on 26.4.2016 with appropriate material in support of their claim regarding the applicability of the notification as to whether they fall within the 'professional and technical educational institution' or not and after the said determination, the respondents would raise demand by 29.4.2016 in terms of the notifications and 5 provide the petitioners-institutions adequate time to deposit the demand raised by them and in case, the petitioner/s are entitled to refund, the order in that regard would also be passed by the appropriate authority within a period of three weeks.
The determination made by the respondents would be open to question by the petitioners in accordance with law.
With the above observations and directions, the writ petitions filed by the petitioners stand disposed of. All the pending applications are also disposed of.
(ARUN BHANSALI), J.
rm/-201 to 208