Delhi High Court
Mcd vs Sunita Devi Gupta on 21 July, 2009
Author: Hima Kohli
Bench: Hima Kohli
`* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 23284/2005
Date of decision : 21.07.2009
IN THE MATTER OF :
MCD ..... Petitioner
Through: Mr. Himanshu Upadhyaya, Advocate
versus
SUNITA DEVI GUPTA ..... Respondent
Through: Mr. Apurb Lal, Advocate
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
1. The petitioner MCD has filed the present writ petition assailing the order dated 24.11.2003 passed by the learned ADJ in an appeal preferred by the respondent/assessee under Section 169 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as „the Act‟) against a bill dated 15.02.2000 raising a demand of property tax in respect of Flat No. 2, on the ground floor of premises bearing No. 1535/1(1/3), East Patel Nagar, New Delhi. By the impugned order, the assessment order dated 30.06.1997 issued by the Joint Assessor and Collector was quashed on W.P.(C) 23284/2005 Page 1 of 5 account of the same violating the statutory provisions of Section 126 of the Act. The learned Additional District Judge held that the petitioner/MCD could not have passed the assessment order in respect of a notice issued on 22.02.1992, signed on 30.06.1997 and received by the respondent/assessee on 15.02.2000, the same being time barred.
2. Counsel for the petitioner/MCD submits that the learned ADJ erred in passing the impugned order for the reason that the order dated 30.06.1997 was in fact a rectification assessment order, rectifying the ratable value fixed by an order dated 20.03.1991 and that it was not an order passed for deciding the notice dated 22.02.1992 issued to the assessee under Section 126 of the Act. He states that the order dated 30.06.1997, being a rectification order, there is no question of the assessment order being time barred as there is no limitation prescribed for the purpose of rectification and hence, sub section (1)(a) of Section 126 of the Act is not applicable.
3. A rectification order can be passed only in terms of the provisions of Section 176 of the Act. The said provision is reproduced hereinbelow for ready reference:
"176. Immaterial error not to affect liability - No assessment and no charge or demand on account of any tax shall be impeached or affected by reason only of any mistake in the name, residence, place of business or occupation of any person liable to pay the tax or in the description of any property or thing, or of any mistake in the amount of the assessment, W.P.(C) 23284/2005 Page 2 of 5 charge or demand, or by reason only of clerical error or other defect of form, if the directions contained in this Act and the bye-laws made thereunder have in substance and effect been complied with; and it shall be enough in the case of any such tax on property or any assessment of value for the purpose of any such tax, if the property taxed or assessed is so described as to be generally known; and it shall not be necessary to name the owner or occupier thereof."
4. A perusal of the aforesaid provision shows that any formal defect in the name, residence, place of business or occupation of any person liable to pay the tax or any mistake in the amount of the assessment, charge or demand, by reason only of clerical error or other defect of form can be rectified by invoking the said provision. However, under the garb of rectification, the petitioner/MCD cannot attempt to amend the assessment list and rectify the assessment order dated 20.03.1991, as the same is not permissible under the provisions of Section 176 of the Act. In the present case, admittedly, the assessee did not approach the petitioner MCD seeking rectification of the assessment order. Rather, the petitioner MCD suo moto decided to rectify the assessment orders for the years w.e.f. 01.04.1984, 01.12.1988 and 01.04.1994. The petitioner/MCD by rectifying the assessment orders for the relevant years, upwardly revised the ratable value for the aforesaid period. The said rectification can by no stretch of imagination, be termed as a correction of a formal defect. W.P.(C) 23284/2005 Page 3 of 5
5. The said act of upward revision of the ratable value, by passing the purported rectification order, amounts to amending the assessment list which could only have been done under the provisions of Section 126 of the DMC Act, but not after the expiry of three years from the end of the year in which, notice is given under sub section (2) or sub section (3) of Section 126 of the Act as mentioned in sub section (4)(b) thereof. Any other interpretation would amount to making the provisions of Section 126 of the Act redundant. The aforesaid ground taken by the petitioner/MCD to assail the impugned order dated 24.11.2003 is untenable as the order dated 30.06.1997 is violative of Section 126 of the Act, three years having already lapsed on 31.03.1995, after issuance of the notice dated 22.02.1992 to the respondent/assessee.
6. It is also pertinent to note that a perusal of the purported rectification order dated 30.06.1997 (Annexure-5) shows that it neither mentions that the same was passed under Section 176 of the DMC Act, nor does the term „rectification‟ appear in the said order. In the absence of any such mention made in the order dated 30.06.1997, it is difficult to accept the contention of the counsel for the petitioner, that the said order was one passed for rectification. Rather, in para 6 of the writ petition, the petitioner has stated that since the respondent had applied for mutation and for assessment on purchased price, the assessing authority rectified the ratable value vide order dated 30.06.1997. Be that as it may and assuming that the W.P.(C) 23284/2005 Page 4 of 5 said order was one of rectification, the same does not satisfy the requirements imposed by Section 176 of the Act, as it was not passed to remove any formal defect in the assessment or demand. Rather, the said order substantially affects the liability of the respondent/assessee to pay property tax for the relevant years, by enhancing the same. The respondent/assessee cannot be permitted to be put to a disadvantage, by adopting such a mode.
7. For the reasons stated hereinabove, the ground taken to assail the impugned order dated 24.11.2003 is turned down as being devoid of merits. It is held that the impugned order does not suffer from any perversity, illegality or arbitrariness that requires interference by this Court in the present proceedings.
8. In view of the fact that the writ petition is rejected, the petitioner is directed to refund the amount of Rs.76,847/- deposited by the respondent with it, within a period of four weeks from today, failing which, the petitioner shall pay simple interest @ 8% per annum, till the said amount is realized by the respondent. The writ petition is dismissed with costs quantified at Rs.7,000/-.
HIMA KOHLI,J JULY 21, 2009 rkb W.P.(C) 23284/2005 Page 5 of 5