Delhi High Court
Bharat Consultants Pvt Ltd vs Ndmc Through The Assessing Authority on 20 February, 2013
Author: G.S.Sistani
Bench: G.S.Sistani
$~59.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1099/2013 & CM 2083/2013
BHARAT CONSULTANTS PVT LTD ..... Petitioner
Through : Mr.Sanjay Poddar, Adv. for Sr.Adv. along
with Mr.Sandeep Bajaj, Mr.Govind Kumar
and Ms.Navlin, Advs.
versus
NDMC THROUGH THE ASSESSING AUTHORITY..... Respondent
Through : Ms.Madhu Tewatia and Ms.Sidhi Arora,
Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
ORDER
% 20.02.2013
1. Present writ petition has been filed by petitioner under Article 226 of the Constitution of India seeking to quash/set aside the impugned order dated 21.1.2013 and the consequent property tax bill dated 2.2.2013.
2. As per the petition, petitioner is the owner of the premises bearing no.169, Golf Links, New Delhi. Prior to the year 2006, the premises in question was being assessed and the property tax bills were raised by the respondent taking the rateable value of the property at the rate of Rs.42,000/-, per annum. On 27.2.2007 the respondent issued a show cause notice to the petitioner under Section 72 of the NDMC Act proposing to increase the rateable value of the property in question from Rs.42,000/- to Rs.42,84,600/-. Reply to this show cause notice was filed by the petitioner on 29.3.2007. Since no assessment order was passed the property of the petitioner was continued to be assessed @Rs.42,000/-, per annum, which is evident from the copies of demands raised by the respondent on 19.11.2007 and 10.12.2008. In the year 2009 assessment by unit area method was introduced by the respondent. The petitioner filed a self- assessment property tax Return in the year 2009. Subsequently the petitioner received a show cause notice dated 19.11.2012 for finalizing the assessment in relation to the notice issued in the year 2007 with regard to the subject property. By a communication dated 23.11.2012 the petitioner informed the respondent that reply / objections to the show cause notice dated 27.2.2007 had been filed, the demand is illegal and without any basis, and no final order had been passed. It is the case of the petitioner that the property in question is self-occupied and the assessment order, which has been passed by the respondent on 21.1.2013, whereby the rateable value of the property in question has been increased from Rs.42,000/- to Rs.33,02,600/-, from the year 2006 onwards, is illegal and arbitrary.
3. Learned counsel for the petitioner submits that the petitioner was not granted any opportunity to put forth its submission and further the respondent has failed to take into consideration the settled position of law.
4. Ms.Madhu Tewatia, learned Standing Counsel for the NDMC, who enters appearance on an advance copy, while refuting the submission made by counsel for the petitioner and the averment made in the writ petition, submits that the present petition is not W.P.(C) 1099/2013 2/4 maintainable in view of the fact that the petitioner has an equally efficacious remedy available by filing an appeal. Counsel further submits that the property in question is not self-occupied as the company is the owner of the property and the property is occupied by three of its Directors. Counsel also contends that prior to the unit area method the respondent was well within its right to assess the property on the basis of the comparable rent in the area. In support of this submission counsel has relied upon New Delhi Municipal Council v. The State Trading Corporation of India Ltd., reported at 126 (2006) DLT 191 (DB) to show that the NDMC is well within its right to carry out the assessment.
5. Learned counsel for the petitioner submits that the remedy of filing an appeal is not an efficacious remedy as for filing an appeal the petitioner would have to deposit the entire amount, which is highly exorbitant. In support of this submission counsel has relied upon Chemical Sales Corporation & Ors. v. NDMC, reported at 64 (1996) DLT 160 (DB), more particularly para 7, which reads as under:
"(7) The next point about the bar of exhaustion of the equally efficacious remedy by way of appeal etc. In ordinary course, it may not be very appropriate to resort to the jurisdiction of the High Court under Article 226 if an alternative efficacious remedy is available. However, an alternative remedy is not an absolute bar to the maintainability of the petition where an authority has acted wholly without jurisdiction. One has to take into consideration that in case of allegation relating to infringement of fundamental rights, lack of jurisdiction in the Tribunal trying the matter and in cases where the impugned W.P.(C) 1099/2013 ¾ order has been made in violation of the principles of natural justice, it has been held that the exhaustion of alternative remedy is no bar to entertaining the writ under Article 226 the reason being that in such matters the order can be treated as void or non-est (See Himmat Lal v. State of MP, AIR 1954 SC 403, Babu Ram v. Zila Prasad, air 1969 SC 556, Carl Still G.m.b.H v State of Bihar, AIR 1961 SC 1615).
6. Learned senior counsel for the petitioner submits that the main grievance of the petitioner is that the respondent had no means to assess the comparable rent and if at all, the petitioner should have been permitted to produce the evidence on record showing the comparable rent of the area.
7. Be that as it may after some hearing in the matter, it is agreed by counsel for the parties that this matter be remanded back to the Director Taxes, NDMC, with liberty to the petitioner to place on record such material as the petitioner may deem fit.
8. Accordingly, the impugned order dated 21.1.2013 issued by the respondent to the petitioner is set aside. As agreed, the petitioner and or his representative shall appear before the Director Taxes, NDMC, on 13.03.2013 at 2.30 p.m. The petitioner shall be entitled to place on record the relevant material on which reliance is placed. The Director Taxes, NDMC, after granting a personal hearing to the petitioner or his representative will pass a reasoned order in accordance with law.
9. Writ petition and application stand disposed of in above terms.
G.S.SISTANI, J FEBRUARY 20, 2013 msr W.P.(C) 1099/2013