Bombay High Court
Gti Infrastructure Ltd. Thr. Its ... vs The Nagpur Municipal Corporation Thr. ... on 12 April, 2019
Author: R. K. Deshpande
Bench: R. K. Deshpande, S.M. Modak
1 Judg. wp 239.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.239 of 2013
GTL Infrastructure Limited, a Company incorporated
under the Companies Act, 1956 and having its
Registered Office at 3rd Floor, Global Vision, ESII,
TTC, Industrial Area, Mahape, Navi Mumbai-400710
and Circle Office at Global House, Lane No.5,
Prabhat Road, Erandwane, Pune 411004,
through its Authorized Signatory
Shri Yogesh Purshottam Gajralwar. .... Petitioner.
-Versus-
1] The Nagpur Municipal Corporation, a body corporate,
constituted under Act No.II of 1950, having its
office Civil Lines, Nagpur, through its Municipal
Commissioner.
2] Assessor and Collector of Taxes Assessment &
Collection Department, Nagpur Municipal Corporation,
Nagpur. .... Respondents.
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Shri P.A. Abhyankar, Counsel for petitioner.
Shri J.B. Kasat, Counsel for respondents.
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Coram : R. K. Deshpande &
S.M. Modak, JJ.
Dated : 12th April, 2019
ORAL JUDGMENT (Per R. K. Deshpande, J.)
Civil Application No.74 of 2019 Civil Application for amendment, is allowed. The necessary amendment be carried out within a period of one week from today.
::: Uploaded on - 15/04/2019 ::: Downloaded on - 06/04/2020 09:07:18 :::2 Judg. wp 239.13.odt Writ Petition No.239 of 2013 Heard finally by consent of the learned Counsels appearing for the parties.
2] The challenge in this petition is to the exigibility of mobile towers to the municipal taxes. The demand notices issued in respect of it are therefore, the subject matter of challenge. Mr. Kasat, learned Counsel appearing for the respondent-Municipal Corporation has filed Civil Application No.2669 of 2018 for dismissal of the petition on the ground that the issue involved in this petition is covered by the decision of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation vs GTL Infrastructure Limited and others, reported at (2017) 3 SCC 545, more particularly paragraph 31 therein. He further submits that the said decision has been followed by this Court in Writ Petition No.1663 of 2017 and other connected matters decided on 28-01-2019 and Writ Petition No.1034 of 2015 and other connected matters decided on 28-08-2017. He, therefore, submits that the petition is required to be dismissed.
3] Mr. Abhyankar, learned Counsel appearing for the petitioner has opposed the application and submits that the decision of the Hon'ble Apex Court is on the provisions of Gujarat Provincial Municipal Corporation Act and therefore it is not applicable to the cases under the Maharashtra Municipal Corporation Act, 1949, ::: Uploaded on - 15/04/2019 ::: Downloaded on - 06/04/2020 09:07:18 ::: 3 Judg. wp 239.13.odt which contain the provisions analogous to the Bombay Provincial Municipal Corporation Act, 1949 and the City of Nagpur Corporation Act, 1948. He has invited our attention to the definition of 'Mobile Tower' under Section 2(34-AA), Section 127 (1)(c) and Section 145-A of the Gujarat Provincial Municipal Corporation Act, 1949 and submits that these provisions are not incorporated either under the Bombay Provincial Municipal Corporation Act or the City of Nagpur Corporation Act or the Maharashtra Municipal Corporation Act. Hence, according to him, the decision is not applicable.
4] We have gone through the decision of the Hon'ble Apex Court. The Hon'ble Apex Court has transferred the matters pending in the Bombay High Court which arose out of the Bombay Provincial Municipal Corporation Act. After considering the provisions of the Bombay Provincial Municipal Corporation Act and the Gujarat Provincial Municipal Corporation Act, the Hon'ble Apex Court has held in paragraph 31 of the said decision as under:-
"31. The measure of the levy, though may not be determinative of the nature of the tax, cannot also be altogether ignored in the light of the views expressed by this Court in Goodricke. Under both the Acts read with the relevant Rules, tax on Mobile Towers is levied on the yield from the land and building calculated in terms of the rateable value of the land and building. Also the incidence of the tax is not on the use of the plant and machinery in the Mobile Tower; rather it is on the use of the ::: Uploaded on - 15/04/2019 ::: Downloaded on - 06/04/2020 09:07:18 :::
4 Judg. wp 239.13.odt land or building, as may be, for purpose of the mobile tower. That the tax is imposed on the "person engaged in providing telecommunication services through such mobile towers" (Section 145-A of the Gujarat Act) merely indicates that it is the occupier and not the owner of the land and building who is liable to pay the tax. Such a liability to pay the tax by the occupier instead of the owner is an accepted facet of the tax payable on land and building under Schedule VII List II Entry 49."
5] Bare perusal of the law laid down by the Hon'ble Apex Court clearly shows that incorporation of Section 145-A of the Gujarat Provincial Municipal Corporation Act, clearly indicates that it is the occupier and not the owner of the land and building, who is liable to pay the tax. The provisions of Section 2(34-AA), Section 127 (1)(c) and Section 145-A in the Gujarat Provincial Municipal Corporation Act, and its absence in the Bombay Provincial Municipal Corporation Act, or the City of Nagpur Corporation Act or the Maharashtra Municipal Corporation Act, in our view would not make the ratio of the decision of the Hon'ble Apex Court inapplicable to the present case. The matter is fully covered and is required to be dismissed.
6] In view of above, the Writ Petition is dismissed. The petitioner shall be at liberty to challenge the taxes demanded on its own merits by filing an appropriate appeal, if it is provided under the Act, as we have not gone into the correctness of the demand notices issued to the petitioner. In spite of knowing fully well that ::: Uploaded on - 15/04/2019 ::: Downloaded on - 06/04/2020 09:07:18 ::: 5 Judg. wp 239.13.odt the matter is covered by the judgment delivered by the Apex Court, the petitioner insisted that without recording concession, the matter be disposed of. It cannot be done without considering the grounds raised and decided. We were constrained to spend time which we could have utilised for dealing with important and urgent matters of medical admissions. The Writ Petition is therefore dismissed with costs of Rs. 25,000/- to be paid to the High Court Bar Association at Nagpur.
7] Rule stands discharged.
8] Costs be paid within a period of two weeks. Put up for
compliance after two weeks.
JUDGE JUDGE
Deshmukh
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