(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal arises against the judgement and order passed by the learned Small Cause Court in MVA No.552 of 1997, whereby the GRV of the premise is fixed at Rs.1,55,000/- for the assessment year 1996-97 and 1997-98. However, it has been stated by the learned Counsel appearing for the respondent Mr.Mehta that separate appeal for the assessment year 1997-98 has been filed by the Corporation before this Court and the present appeal is for the assessment year 1996-97 only.
2. The relevant facts are that for the premise bearing Survey No.162/A/1 of TPS 14, F.P. No.202situated at Dariapur – Kazipur – 2/A, the officers of the Corporation had assessed the GRV at Rs.4,83,677 for the assessment year 1996-97 and 1997-98. The respondent being aggrieved by the aforesaid assessment and fixation of GRV had preferred appeal being MVA No.552 of 1997 before the Court of the learned Small Causes Judge. The learned Small Causes Judge, at the conclusion of the appeal, passed the above referred judgement. Hence, the present appeal before this Court. As recorded earlier, though the impugned order is common for both the assessment years 1996-97 and 1997-98 the present appeal is only for the assessment year 1996-97. It has been stated that for the year 1997-98, separate appeal being First Appeal No.362 of 2003 is preferred.
3. We have heard Ms.Jhaveri, learned Counsel appearing for the appellant and Mr.Mehta, learned Counsel for the respondent.
4. It appears from the judgement of the lower Court that the lower Court has set aside the assessment made by the officers of the Corporation on the ground that as per the previous judgement of the Small Causes Court in MVA No.221 of 1996, the GRV of the premise was fixed at Rs.1,65,000/- vide decision dated 27.3.2000.
5. However, the learned Counsel appearing for the appellant, contended that thereafter there was separate assessment period of the Assessment Books and, therefore, the notice under Rule 15(2) of the relevant Rules was served and, therefore, ipso facto the earlier judgement would not apply, since the span for preparation of the assessment book was different and the notice was also served under Rule 15(2) of the Rules.
6. We may state that for giving effect to the decision of the Court for the subsequent period within the same span during which the assessment books had to be maintained as well as for the subsequent period, the issue came to be considered by this Court in the case of Ahmedabad Municipal Corporation v. Rasiklal S. Maradia, reported in 2012(1) GLR 767, and at paragraphs 12 to 23, it was observed as under:-
(12) The aforesaid leads us to examine the aspect of the requirement to follow the provision of Rules 15(1) and 15(2) of the Rules in a case where for the first year the assessment has been made against which the complaint was filed by the assessee and that complaint came to be disposed of, against which the appeal has been preferred before the Court under Section 406 of the Bombay Provincial Municipal Corporations Act, 1949 (the Act) by the assessee and wherein the assessment has been reduced and/or set aside by the Court. It may also be required to be examined about the effect of the decision of the competent court in respect of assessment of the very premises in such appeal for the subsequent year so far as it relates to continuation of the entry in the assessment book and also so far as it relates to giving effect to the orders of the competent forum. The next aspect, which may be required to be considered, would be the approach on the part of the appellate court if in a given case for the subsequent year the effect has not been given by the commissioner or the Corporation in the subsequent year for the assessment of tax of the very premises.
(13) We may record that as observed earlier in the decision of this Court in the case of Municipal Corporation of the City of Ahmedabad (supra) this Court did observe that in taxation each year is to be regarded as distinct and separate and, therefore, the court further observed that the appellate decision for one year ipso facto cannot be regarded as a decision for the other years as a whole but in the very decision it was further observed that such a situation may continue as long as the appeals have been filed before the Small Causes Court or to the High Court the assessment cannot be regarded as having become final. Under the circumstances, the aspect, which has been considered in the above decision, is for giving treatment to each year as separate and district and this Court had no occasion to examine the question as referred to hereinabove inasmuch as what will be the effect of the decision of the appellate court upon the assessment book or that if the assessee has already filed objections against the assessment made for the first year in the span of four years, whether would he be required to submit objections once again for the next year or whether the Corporation would be justified in continuing with the entry in the assessment book in spite of having conscious knowledge of the fact that the objections have been filed against the entry made in the assessment book by the assessee but they were not accepted or they were filed or that the appeal has been filed against the assessment made by the Corporation after the disposal of the objections.
(14) In order to understand the situation a query was raised to the learned advocate for the appellants that if after the entry made in the assessment book any objection or complaint has been filed by the assessee and after consideration of the complaint or objections of the assessee the Commissioner takes a decision for reduction of GRV or otherwise, would the commissioner be entitled to continue with the old entry made in the assessment book of the earlier year or he will record the modified entry in the subsequent year. In response thereto learned counsel fairly submitted that if the commissioner himself has corrected the entry in the first year after considering the objections naturally for the subsequent year he will be required to show corrected entry and not the old entry prior to the correction. We find that even otherwise also once the commissioner has corrected the entry for the first year after considering the objections unless there is a fresh assessment made or additional material available with him, he would be required to show the corrected entry in the subsequent year at least until the expiry of span of four years and he cannot create a situation of continuing with the old entry (uncorrected) for the subsequent year leading the complainant to file same complaint for the subsequent year of the same type and he may be required to decide the same once against and thereafter the further proceedings of appeal or otherwise. We are at loss to understand as to if the correction is made by the commissioner and that correction is to be given effect in the subsequent year in the assessment book, why the effect of the same type should not be given to the decision of the appellate court whose powers is otherwise read by the court in all respect as that of the commissioner for the assessment of any premises. Further it can hardly be countenanced that the commissioner for the subsequent year will not give effect to the decision of the appellate court even if such decision of the appellate court is accepted for the respective year and no challenge is made nor can we countenance the approach on the part of the commissioner for not giving effect to the order of the competent forum i.e. the appellate court in respect of the assessment of any premises unless there is any change in the circumstances on record available with the commissioner.
(15) Apart from the above, in any case while considering the continuation of the entry in the assessment book for the subsequent year even after considering each taxation year as separate and distinct, the provision of Section 21 of the Act are required to be considered. The aforesaid provision shows that it will not be necessary for the commissioner to prepare new assessment book every year and subject to the provision of sub- rule (2) of Rule 15 of the Rules, the commissioner may adopt the entires in the last preceding year with such alteration as thinks fit as the entries for each new year. Therefore, after the entry is to be altered provision of sub-rule (2) of Rule 15 of the Rules would apply. Another pertinent aspect is that by the first proviso it has been provided that a public notice shall be given every year in such circumstances when the entires made in the first preceding year are adopted for the subsequent year without there being any change. The second proviso makes it abundantly clear that it will be obligatory for the commissioner to give effect to every final appellate decision for all the final years, subsequent to the final year to which such entries have been made by adopting them. Therefore, at least in a taxation span of four years if the correction is made in respect of first year or modification is made in respect of first year by the appellate decision the commissioner will have to give effect for all final years subsequent to the final year to which such entries have been made by adopting them. This makes it clear that it is not open to the commissioner for not to give effect to the appellate decision.
(16) Under the circumstances, the observations made by this Court in the decision of Municipal Corporation of the City of Ahmedabad (supra) made at Paragraph No.73, relevant portion whereof is reproduced hereinabove, are required to be considered in light of the aforesaid statutory provision, more particularly the second proviso to Rule 21 of the Rules. As such in the above referred decision, the Division Bench of this Court had no occasion to consider the second proviso to Rule 21 of the Rules for the purposes of giving effect to the appellate decision for all final years subsequent to which entry was made and adopted. As observed earlier, the new assessment book prepared is to be prepared once in every four years and, therefore, such, in any case, will have to be given effect if there is a decision of the appellate court in the first year for subsequent three years or, in another words, at least till expiry of the span of four years during which the assessment book have been continued and not prepared afresh.
(17) Further, the aspect of sanctity to the orders of the competent court to the authority who is bound by it, would also be required to be considered. Once a decision is taken by the competent court may be for a particular year for the assessment of the premises, the same is bound to be respected in the every span of taxation may be for subsequent year unless there is any material available for not giving effect to the said decision and/or to make a fresh assessment. We can appreciate that in a case where the assessment is set aside on the ground of not following the mandatory procedure under Rule 15(2) of the Rules and thereafter the Small Causes Court has not proceeded to make any assessment of the tax thereby creating a situation of zero tax assessment may stand on different footing but in a case where the assessment has been made by reduction or modification than that of the commissioner by the appellate court, in absence of any other additional material, there is no reason why such an assessment as decided by the appellate court should not be given effect in the subsequent year. Possibly, keeping in mind the said aspect, this Court in the decision of Municipal Corporation of the City of Ahmedabad (supra) used the words i“pso facto” which may leave room for consideration of the other additional material, if any, available with the Corporation or commissioner for not to give the effect to the decision of the appellate court for the very premises or a fresh assessment has been made on the revised norms or otherwise. It is true that each year in taxation matter is to be regarded as distinct and separate but, in our view, giving effect to the decision of the court may touch at the threshold either for continuing with the entry of the assessment book and/or to maintain the sanctity of the orders of the competent court. No power can be read with the commissioner to continue with the assessment book either by closing eyes to the proceedings of filing complaint by the assessee and the appeal preferred by the assessee against disposal of the compliant and confirmation of the assessment and/or the decision of the competent court nor a situation can be created compelling the assessee to file complaint or objections in the subsequent year within the same span of four years of taxation if the assessment was made by the commissioner for the first year in the span of taxation, out of four and is allowed to continue for subsequent years within the same span irrespective of the objections filed and decided or the modification thereof by the court. There is no reason why such benefit should not be extended to the assessee for continuation with the same resistance of the assessment made in the assessment book as was made for the first year in the span of taxation. If the commissioner is entitled to continue with the entries made in the assessment book for subsequent three years for the span of total four years, the objections once filed can be termed for subsequent year too within the same span so as to maintain the appeal, which is a substantive right of the assessee, and as observed by the Apex Court analogs to the rights under section 96 of Code of Civil Procedure, 1908, as and when the bills are so received on the basis of the assessment made by the Corporation by the assessee. We find that the consideration of the aforesaid aspect never arose before this Court in the decision of Municipal Corporation of the City of Ahmedabad (supra).
(18) We find that the matter may not end there but further aspect may be required to be examined about compliance of the provision of Rules 15(1) and 15(2) of the Rules if the entries in the book are to be continued by giving effect to the decision of the appellate court for subsequent year in the span of four years of taxation. In the same manner, the question of giving effect to the order by the court itself would also be required to be considered in the event for the any premises the appellate court has assessed a particular amount as GRV and for the subsequent year the appeal is preferred against the assessment made by the Corporation or the bills are issued by continuing with the same assessment by the Corporation. If the Corporation has been able to show any material justifying continuation of the assessment or any additional material showing that the assessment was made earlier by the court may not be continued on the ground of change in the premises, its occupation or use or zoning, etc., it might stand on different footing and the court may be required to examine the aspect as to whether such additional materials are sufficient to modify the amount of assessment made and fixed by the court or not after giving opportunity to both sides.
(19) An attempt was made by the learned advocate for the appellants contending that the whole burden would lie upon the assessee to show the appellate court that the assessment made by the Corporation is wrong or that the valuation of the premises or GRV of the premises, because of the position prevailing in the nearby area, should be lower or otherwise. For such purpose the reliance was placed upon the observations made made by this Court in the decision of Municipal Corporation of the City of Ahmedabad (supra) at Paragraph No.71, relevant of which reads as under:
“... ... ... For the purposes of giving an opportunity to an owner or an occupier to file a complaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the ratable value. The Commissioner is under no obligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to complain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the Rules. On the receipt of the notice, it will be for the complainant to lead evidence and prove as to what should be the correct rateable value. A hearing is contemplated by Rule 18 and if the assessee requires any clarification with regard to the entry made in the assessment book, we see no reason as to why this clarification would not, ordinarily, be given. Be that as it may, Rule 15(2) does not require the giving of any particulars in addition to what is stated therein. The aforesaid decisions of various Courts, therefore, can be of no assistance to the respondents.”
(20) We may also observed that the aforesaid observations of this Court was also considered by the Apex Court in case of Assistant General Manager, Central Bank of India & Ors. (supra) at Paragraph Nos.39 and 40, which reads as under:
“39. We must deal with one another contention urged by Sri Rohinton Nariman. He submitted that the special notice issued in his case under Rule 15(2) of Chapter - VIII of Schedule - A is totally devoid of any particulars or grounds upon which the assessment was sought to be enhanced. He relies upon the general proposition that a show cause notice must contain the relevant particulars and grounds sufficient to put the person concerned on notice of the proposed action and it basis. Absence of such particulars and grounds in such show cause notice, he submits, vitiates the special notice itself. The High Court has rejected the contention in the following words:
"Notice under Section 15(2) is issued after entry in the assessment book has been made. Sub-rule (2) of Rule 15 requires that the special written notice to the owner or the occupier shall specify the nature of such entry. In other words, the special notice must inform the owner about the entries mentioned in Rule 9, clauses (a), (b),(c) and (d) because the said Rule 15 has to be read with Rules 9 and 13. When a statute specified as to what should be the contents of a notice, and that is so specified in Rule 15(2), the general principles enunciated by the aforesaid decisions and of the other High Courts would not be applicable. For the purposes of giving an opportunity to an owner or an occupier to file a com-plaint, all that he has to be informed is what the Commissioner has entered in the assessment book. One of the items, which is entered, is the rateable value. The Commissioner is under no obligation to inform as to how the rateable value, which is entered in the assessment book, has been arrived at. It is for the owner to complain if he finds the rateable value to be high. The principles for fixation of rateable value are well-known. Ordinarily, a rateable value will be arrived at after particulars had been given by the owners or occupiers under Rule 8 of the said Rules. On the receipt of the notice, it will be for the complainant to lead evidence and prove as to what should be correct rateable value. A hearing is contemplated by Rule 18 and if the assessee requires any classification with regard to the entry made in the assessment book, we see no reason as to why this classification would not, ordinarily, be given. Be that as it may, Rule 15(2) does not require the giving of any particulars in addition to what is slated therein. The aforesaid decisions of various Courts therefore, can be of no assistance to the respondents."
40. We agree with and affirm the reasoning of the High Court and accordingly reject the contention.”
(21) Mr.Tanna, learned Senior Counsel, by reading the aforesaid observations attempted to contend that the whole burden would lie upon the assessee to show that ratable value would not be so high and the burden is not open the commissioner to prove or justify the assessment.
(22) In our view, the said contention is misconceived inasmuch as the observations made by this Court in the decision of Municipal Corporation of the City of Ahmedabad (supra) read with the observations made by the Apex Court in case of Assistant General Manager, Central Bank of India & Ors. (supra) are pertaining to the composition or the contents of the show cause notice and for further examination of the aspects at the level of the commissioner while considering the complaint and it cannot be read for burden to be discharged by the party concern in the proceedings of the appeal under section 406 of the Act. In a matter where the commissioner has to issue notice to the assessee under Rule 15(2) of the Rules, such aspect for observation of principles of natural justice before finalizing the assessment is different. Further, at the time when the assessment is to be finalized by disposal of the complaint or objections, as the case may be, the commissioner is strictly not exercising the judicial power but rather a party who is to take decision upon the assessment in the event it is objected or against which a complaint is filed after observing principles of natural justice. But the proceedings of the appeal under section 406 of the Act before the court are as that of the judicial proceedings. When a challenge is made to the decision of assessment before the court, it is not possible for us to accept the submission that the commissioner is under no obligation to satisfy the appellate court that the assessment made was justifiable in the facts and circumstances of the case. Further, in a case where there is already a decision of the appellate court for assessment of a particular amount as GRV for a particular premises, if the same is not accepted or a different assessment has been made by the commissioner, such burden would be upon the commissioner to show in the appeal that because of additional material, may be of increase of ratable value in the market or change in the premises or occupation or its use or locality or otherwise, the ratable value has been rightly increased or otherwise. Hence, the contention of the learned counsel for the appellants that the commissioner is not under obligation to justify the ratable value before the appellate court or that the commissioner is under no obligation to justify the increase in the ratable value than as was fixed by the court for the very premises in the earlier year, cannot be accepted.
(23) Suffice it to state that both the parties will have to discharge their respective burden to satisfy the appellate court on the aspect as to whether a particular amount of ratable value of a premise is justified or not and if not to what extent and what should be a correct ratable value of the premises for the respective year.”
7. The aforesaid shows that even if the new entries are to be made in the assessment books, there should be justifiable ground for altering the GRV already fixed by the Court. Such ground may be by way of an additional material before the Commissioner for increase in the market value or change in the premise or occupation or its use or locality or otherwise, which may warrant the increase in the GRV. No material was produced before the lower Court, nor is it brought to our notice, which may justify the increase in the GRV. Under these circumstances, in absence of any additional material available before the Commissioner, when the rateable value was already fixed by the Court for the earlier span of assessment and if the lower Court has relied upon the earlier decision of the Court for fixation of GRV, it cannot be said that any error has been committed by the lower Court.
8. Under these circumstances, the appeal is meritless. Hence, dismissed. Office shall keep a copy of the order in the proceedings of First Appeal No.362 of 2003.
(Jayant Patel, J.) (C. L. Soni, J.) vinod