Madras High Court
Shree Mahaveer Jainkalyan Sangh vs The Special Thasildar (Ult) on 10 August, 2016
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 10.08.2016
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
W.P.No.20293 of 2005 &
W.P.M.P.No.22144 of 2005
Shree Mahaveer Jainkalyan Sangh,
(Regd. Society),
Rep. by its Secretary,
U.Pannalal Vaid,
96, Vepery High Road,
Chennai-600 007. .. Petitioner
Versus
1.The Special Thasildar (ULT),
Fort-Tondiarpet Taluk,
Chennai-600 003.
2.The Special Commissioner and
Commissioner of Land Reforms,
(Urban Land Tax),
Ezhilagham, Chepauk,
Chennai-600 005. .. Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari to call for the records culminated in Letter C1/12473/2000, dated __03.2005 of the Special Thasildar (ULT), Fort-Tondiarpet Taluk, Chennai-3, the first respondent herein and quash the said letter.
For Petitioner : Mr.Adeesh Anto
For Mr.Sivam Sivanandaraj
For Respondents : M/s.Vasuda Thiagarajan
Additional Government Pleader
O R D E R
Heard Mr.Adeesh Anto, for Mr.Sivam Sivanandaraj, learned counsel appearing for the petitioner and Mrs.Vasuda Thiagarajan, learned Additional Government Pleader appearing for the respondents.
2. The petitioner has filed this Writ Petition challenging a demand issued by the first respondent, calling upon the petitioner to pay the Urban Land Tax for the Falsi from 1401 to 1414.
3. The reason assigned in the impugned communication is that the petitioner has not obtained any exemption under Section 27(h) of the Tamil Nadu Urban Land Tax Act (hereinafter referred to as "the Act") and therefore, they are duty bound to pay tax to the Government.
4. The petitioner is an Educational Institution and their contention is that they are totally exempted from the purview of the Act and the question of approaching the Government does not arise. It is further pointed out that earlier, the petitioner had approached this Court and filed a Writ Petition in W.P.No.1422 of 1982, challenging the proceedings of the first respondent, dated 25.10.1975 and the consequential proceedings of the Urban Land Tax Tribunal in ULT No.143 of 1977, dated 21.11.1981. It appears that the Urban Land Tax Tribunal heard the Appeal along with other similar Appeals and without discussing the facts of each individual case, dismissed all the Appeals, by a common Order and when this was put to challenge in the said Writ Petition, the petitioner contended that they being an Educational Institution recognized by the Central Board of School Education, is entitled to the benefit of exemption under Section 29(h) of the Act. This submission was taken into consideration and the Court observed that this benefit of exemption under Section 29(h) of the Act being a valuable right and in so far as the Tribunal has not considered this aspect, the order passed by the Tribunal was set-aside and the Appeal was restored to file and the Tribunal was directed to dispose of the said Appeal, afresh after affording fresh opportunity to both parties.
5. It is stated that the Appeal is still pending and till date, it has not been disposed of. Thus, when the order passed by the Urban Land Tax Tribunal in ULT No.143 of 1977, dated 21.11.1981, has already been set-aside by this Court, and the matter was remanded to the Tribunal for fresh consideration, the question of demanding Urban Land Tax as demanded in the impugned order cannot be sustained.
6. Mr.V.Ramesh, learned counsel, who assisted the Court during the course of hearing, submitted that there is a distinction between the exemption granted under Section 27 of the Act and the exemption under Section 29 of the Act. To explain the above position further, the learned counsel has referred to the decision of the Hon'ble Division Bench of this Court in the case of Southern India Educational Trust Vs. Government of Tamil Nadu reported in 1999 (III) CTC 711. In the said case, the Appellant was an Educational Trust, which was established to promote education and all types of grades and other charitable purposes. The said Trust was assessed to Urban Land Tax and on the Appeal filed by the Trust, the Commissioner of Land Reforms, set-aside the order of the Assistant Commissioner and directed fresh Assessment, after excluding portions of the land and buildings occupied for educational purpose. Accordingly, fresh Assessment was made excluding certain extent under Section 29(h) of the Act. Thereafter, tax was levied on the remaining extent as the Assessing Officer found that the remaining extent was not utilized for the purpose of education, but used for commercial purpose. The Trust approached the Government seeking exemption under Section 27(1) of the Act, which was rejected. The said order was put to challenge by filing a Writ Petition and the same was dismissed, as against which, Writ Appeal was preferred. The Hon'ble Division Bench, while deciding the said controversy, explained the distinction between power under Section 27 and Section 29 of the Act and at this juncture, it would be beneficial to refer to the relevant portion of the Hon'ble Division Bench judgment:-
" 4. ..... A reading of both provisions would disclose that while Section 29 deals with a total and mandatory exemption, section 27 of the Act contemplates discretionary exemption which the Government is entitled to grant subject to the assessee satisfying the required criteria. In other words, the exemption under Section 29 of the Act is automatic, mandatory and total and there is no discretion left with the Government to refuse the grant of exemption, if the assessee falls within any one of the categories enumerated thereunder. When once an institution is either notified or is shown to be covered under Section 29, the exemption is complete and unconditional and the Revenue has no discretion to ignore or to refuse the exemption or to pass any order of assessment."
.....
6. ..... The entitlement for exemption under Section 29(h) of the Act does not depend only upon the nomenclature or the avowed objections of the institution. But the actual purpose for which the properties are utilized or put to use, has to prevail. ...."
7. Mr.V.Ramesh, the learned counsel also placed for consideration before this Court the decision of the Hon'ble Supreme Court in the case of Agastyar Trust V. Commr. & Secretary to Govt., Revenue Deptt., reported in AIR 2005 SC 1824, wherein, the Hon'ble Supreme Court clearly pointed out the distinction between the exemption under Section 29 and Section 27 of the Act. At this juncture, it would be beneficial to refer to the relevant paragraph of the Hon'ble Supreme Court judgment:-
18. While under Section 29, the exemption is granted by the statue itself and is automatic in respect of the urban lands owned by the authorities or institutions referred to therein, the exemption under Section 27 is not so. For exemption under Section 27, power is vested with the State Government to exempt the lands or persons from payment of tax "if the Government is satisfied that the payment of urban land tax would cause undue hardship". Such power can be exercised by the Government only on specific application by the person or institution seeking exemption and on placing satisfactory material for exercise of such power. The exemption under Section 27 is not a matter of right and does not follow as a matter of course."
8. In the light of the above legal position, this vital issue has to be considered and the matter is now pending before the Urban Land Tax Tribunal. At this juncture, the first respondent cannot sustain the impugned demand on the ground that the petitioner has not applied for exemption under Section 27 of the Act, when the petitioner's claim that they are exempted in terms of Section 29 of the Act and the difference between both enactments being clearly distinguishable, the impugned order has to be held to be unsustainable in law.
9. Accordingly, the Writ Petition is allowed and the impugned order is quashed. No costs. Consequently, connected miscellaneous petition is closed.
10.08.2016
Index :Yes/No.
Internet:Yes/No.
r n s
T.S.SIVAGNANAM, J.,
r n s
To
1.The Special Thasildar (ULT),
Fort-Tondiarpet Taluk,
Chennai-600 003.
2.The Special Commissioner and
Commissioner of Land Reforms,
(Urban Land Tax),
Ezhilagham, Chepauk,
Chennai-600 005.
W.P.No.20293 of 2005 &
W.P.M.P.No.22144 of 2005
10.08.2016