Delhi District Court
Vandana Gupta vs New Delhi Municipal Council on 14 August, 2018
IN THE COURT OF MS. TWINKLE WADHWA: LD.
ADDITIONAL DISTRICT JUDGE03:PATIALA HOUSE
COURT:NEW DELHI DISTRICT
HTA 181/16
Vandana Gupta
Wife of Shri Chetan Gupta
Resident of B21, Maharani Bagh,
New Delhi.
.....Appellant
VERSUS
New Delhi Municipal Council
Palika Kendra Parliament Street
New Delhi110001.
....Respondent
Date of Institution : 23.02.2013
Date of Final Arguments : 14.08.2018
Date of Decision : 14.08.2018
JUDGMENT
The Case of Appellant
1. It is the case of appellant that property no. GF1, Ansal Bhawan, Kasturba Gandhi Marg, Connaught Place, New Delhi was purchased by him on 27.11.1991 for a sum of Rs.9 lacs. Further he had already sold this property in favor of defendant no.2 on 28.07.2008. But in the same agreement, he is liable to clear all the taxes as per law up to the date of sale and hence he is liable to pay the house tax accordingly assessed uptil July HTA No. 181/16 Page 1 of 7 2008. Hence, present appeal is filed.
2. It is the case of appellant that in the impugned notice dated 28.02.2002 which was issued to him, the existing rateable value has been shown as Rs.2,70,000/. However, it is submitted by ld. counsel for appellant that in the house tax bills issued to the appellant by the NDMC for the year 20022007 (copies of which are placed on record), the rateable value has been mentioned as Rs.81,000/.
3. It is further argued that in the impugned notice dated 28.02.2002, the provisional ratable value has been mentioned as Rs.9,18,000/.
4. It is further the case of appellant that on 13.12.2012 he received an assessment order from NDMC thereby mentioning that the existing rateable value was increased. Further it is mentioned in the assesment order that the impugned notice dated 28.02.2002 was given to him to revise the existing rateable value of Rs.2,70,000/ to Rs.9,18,000/ w.e.f 01.04.2011 on comparable rent @ Rs.85/ per Sq. ft. per month. It is submitted by ld. counsel for appellant that the impugned notice which was given to him did not mention the comparable rent @ Rs.85/ per sq. ft. per month hence he has no opportunity to represent his case before the assessing officer. Further the existing rateable value has been wrongly mentioned as Rs.2,70,000/ as in the house tax receipts given to the applicant it is mentioned Rs.81,000/.
HTA No. 181/16 Page 2 of 75. It is further argued that actual comparable rent @ Rs.79.50/ per Sq. ft. per month is arbitrary and is not in consensus with the notice which was sent. It is further submitted that the impugned assessment order was made effective from 01.04.2001. The impugned assessment is time barred as well.
The case of NDMC
6. No reply is filed by NDMC. However, it is submitted by counsel for NDMC that in the impugned notice dated 28.02.2002, it is specifically mentioned in Clause 6 that proposed rateable value is based on prevalent market rate of rent. Further it is argued that the objection taken by appellant is that since it is a self acquired property, assessment cannot be based on comparative rent is misconceived as it was held by Hon'ble High Court in order WP © No. 5548/04 dated 09.05.2006 that even for self occupied properties, NDMC is permitted to determine the rateable value of the property at market rent. It is submitted by counsel for NDMC that in his objections filed by appellant, he had not mentioned that assessment cannot be based on market rent. It is further submitted that assessment is in consensus with the judgment of the Hon'ble High Court mentioned as above. The calculation is made as per law.
7. I have heard both the parties and gone through the record.
HTA No. 181/16 Page 3 of 7Reasons for Decision
8. The impugned notice dated 28.02.202 which was issued to appellant is admitted by both the parties on record. The existing rateable value is mentioned in the said notice at Rs.2,70,000/. While appellant has filed on record house tax bills issued in favor of appellant by NDMC from the year 2002 till 2007. On all those bills, rateable value has been mentioned as Rs.81,000/. Hence, what is the basis for calculating existing rateable value at Rs.2,70,000/ is not mentioned in this notice.
9. Further in the impugned notice dated 28.02.2002, the proposed rateable value has been mentioned as Rs.9,18,000/ and further it is mentioned in Clause 6 that it is based on prevalent market rate of rent. But how the market rent/comparable rent @ Rs.85/ per sq. ft. per month has been assessed is not explained in the assessment order.
10. Further the comparable rent of Rs.85/per sq. ft. per month is mentioned in the assessment order dated 13.08.2012. The same is not mentioned in the impugned notice dated 28.02.2002. Hence appellant had no opportunity to give his representation against the impugned assessment of comparable rent @ Rs.85/per sq. ft. per month.
11. Further it is all the more pertinent to mention that the actual comparable rent on the basis of which property of appellant has been assessed is Rs.79.50/ per sq. ft. per month.
HTA No. 181/16 Page 4 of 7There is no reason given whatsoever that after giving the assessment @ Rs.85/ per sq. ft. per month, how the figure of Rs.79.50/ has been arrived at. Needless to say, appellant did not get any opportunity to make any representation against the said assessment of comparable rent @ Rs.85/per sq. ft. per month or assessment @ Rs.79.50/per sq. ft. per month
12. Needless to say, that by way of the said order dated 09.05.2006 in the above mentioned Writ, it is proved by NDMC that even in case of self occupied properties, rateable value can be on the basis of comparative rent. However, the matter of fact still remains that in the present case, appellant did not get any chance to represent his case before assessing officer as in the impugned notice, the comparable rent @ Rs.85/per sq. ft. per month or Rs.79.50/ per sq. ft. per month was not mentioned.
13. It is submitted by ld. counsel for NDMC that the rent could be hypothetical rent as well, as per law. However, the matter of fact still remain that appellant did not get any opportunity to make representation to the assessing officer against the so called hypothetical/comparable rent in terms of Section 72(2) of NDMC Act as said rent was not mentioned in the impugned notice.
14. Further the impugned assessment order nowhere reveals that the objection filed by the appellant were even considered nor there is any finding on the said objections in the HTA No. 181/16 Page 5 of 7 assessment order.
15. It is further the argument of counsel for NDMC that he may be given an opportunity to produce the relevant record before this Court so that this Court may come to a conclusion whether the comparable rate @ Rs.85/ per Sq. ft. per month or @ Rs.79.50/ per sq. ft. per month is correct or not. However, the present is an appellate court. It is the assessing officer of NDMC who decides the comparable rent for property after considering objections of the parties, if any. Against the order of assessing officer, appeal can be filed before this Court to decide whether the order of assessing officer is correct or not.
16. Hence, this is not the appropriate Court to decide the comparable rent. It is the assessing officer before whom whole of the record has to be produced, appellant is to file objections and thereafter the assessing officer is to give his finding regarding the comparable rent. Hence, the argument that NDMC may be permitted to bring the relevant record before this Court is of no use. Further this is all the more so when the assessment order itself is silent that after assessing the comparable rent Rs.85/ per sq. ft. per month, why the assessment of the property of appellant has been made @ Rs.79.50/ per sq. ft. per month and not at any other amount. In my considered opinion the appellant must be given an opportunity to present his case before the assessing officer.
HTA No. 181/16 Page 6 of 717. In view of above, the said assessment order dated 13.08.2012 is hereby set aside.
18. NDMC is at liberty to proceed against appellant as per law. Appeal is accordingly allowed.
File be consigned to record room.
Digitally signed byAnnounced in an open Court TWINKLE TWINKLE WADHWA On 14th day of August, 2018. WADHWA Date: 2018.08.14 12:11:17 +0530 (TWINKLE WADHWA) ADJ03/PHC/NEW DELHI 14.08.2018 HTA No. 181/16 Page 7 of 7