Court No. - 3
Case :- WRIT TAX No. - 427 of 2021 Petitioner :- Baldev Sahay Sanskrit Mahavidyalaya Trust Respondent :- Union Of India Through Secretary, Ministry Of Defense, Counsel for Petitioner :- Tarun Agrawal,Sr. Advocate Ravi Kant,Uday Pratap Singh Counsel for Respondent :- A.S.G.I.,Shakti Dhar Dube,Sujata Choudhary
Hon'ble Naheed Ara Moonis,J. Hon'ble Saumitra Dayal Singh,J.
Order on C.M. Amendment Application No. 6 of 2021
1. By means of the amendment application, the petitioner seeks refund of the demand of property tax (Rs.21,99,398/-) recovered during pendency of the petition.
2. By the amendment, the petitioner only seeks a consequential relief. The amendment application is thus allowed. Amendment is treated to have been incorporated.
Order on Petition
3. Heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Tarun Agrawal, learned counsel for the petitioner; Sri Shakti Dhar Dube, alongwith Sri Neeraj Dubey, learned counsel appearing for the Cantonment Board and Ms. Sujata Choudhary, learned counsel appearing for the Union of India.
4. Present petition has been filed to challenge the demand notice no. CBK/RS/K-1462 dated 25.03.2021 as also a further notice no. CBK/RS/K-1498 dated 31.03.2021. By those notices the respondent- Cantonment Board raised a demand of property tax Rs. 21,99,398/- on the petitioner for the period 01.04.2020 to 31.03.2021, under the Cantonments Act, 2006 (hereinafter referred to as the 'Act').
5. Submission of learned Senior Counsel for the petitioner is, the petitioner had raised a claim for exemption under Section 111(2)(b) of the Act. That claim has not been decided. Therefore, there is no finalized assessment in existence. Consequently, the recovery initiated in absence of that adjudication is wholly illegal and premature. According to the petitioner, it is an educational society. It initially established a school to impart education in Sanskrit. Later, the petitioner trust let out its building to another charitable trust and society namely Uma Krishna Educational Foundation. Upon permission granted by the District Judge, Kanpur Nagar, the petitioner trust executed a lease deed in favour of the aforesaid society on 16.03.2010. At present, a school is being run from the disputed premises, under a franchise agreement with Billabong High International. To this extent, there is no dispute between the parties. Claiming the nature of its activities and therefore the use of the building to be for educational purposes only, a claim for exemption was made by the petitioner under Section 111(2)(b) of the Act, during the course of the assessment proceeding for the period 2017 to 2020.
6. Whether that claim of exemption has been dealt with and whether the objection raised by the petitioner has been decided before issuing and pressing the notice of demand, is the dispute involved in the present case.
7. A preliminary objection has been raised by the learned counsel appearing for the Cantonment Board that the writ petition is not maintainable. The only remedy available to the petitioner is to file an appeal under Section 93 of the Act against the assessment or levy of tax under the Act. Second preliminary objection has been raised that, in any case, the assessment order was passed on a concession made by the petitioner, recorded in writing (on the ordersheet of the respondent- Cantonment Board) on 26.09.2019. The demand of property tax has been raised strictly in accordance with that concession. Therefore, the writ petition deserves to be dismissed, in limine.
8. While entertaining this writ petition, we had passed the below quoted order on 29.07.2021:
“Principally, the submission advanced by the learned Senior Counsel is that the petitioner being an educational institution is exempted from property tax by virtue of provisions of Section 111(2)(b) of the Cantonments Act, 2006. Specific objection claiming exemption was raised by the petitioner in response to the earlier notice of the assessment, a copy of the same is Annexure-10 to the writ petition. However, without first deciding that objection and without serving copy of such assessment order, exorbitant demand of Rs.22 lacs was pressed against the petitioner. Before the petition could be heard at the fresh stage, the entire amount has already been recovered by adopting coercive measures contrary to law.
Mr. Dube, learned counsel for the Cantonment Board may obtain instruction in that regard, if necessary, place on record a short counter affidavit on or before the next date fixed.
Put up as fresh on 5.8.2021.”
9. Thereafter, on 05.08.2021, upon hearing the matter at some length, we passed the following order:
“After brief submission, it appears that according to the petitioner other than order sheet dated 26.09.2019 no other document has been served on the petitioner. On the other hand, learned counsel for the Cantonment Board relies on further communication dated 3rd April, 2021 wherein it has been stated that the assessment order passed in the case of the petitioner has been served.
Accordingly, put up as fresh on 12th August, 2021 to enable the learned counsel for the Cantonment Board to produce the assessment order that may have been passed separate from the order sheet dated 26.09.2019 and the original record to establish that such order had been served on the petitioner.
The dealing officer of Cantonment Board, who is well conversant with the facts of the case shall remain present on the next date fixed.”
10. Counter affidavit has been filed. Also, the record has been produced today by Sri G.P. Nigam, Revenue Superintendent, Cantonment Board, Kanpur. It reveals, a proposal was made by the Cantonment Board in terms of Section 69 of the Act, to revise the assessment of the petitioner, for the period 2017-20, vide notice dated 26.07.2019. In response, the petitioner filed objection under Section 70 of the Act, with respect to House No. 124, SY No. 530/1, Kanpur Cantt. Paragraph nos. 6, 7 and 8 of that objection read as under:
“Section 111 of the Cantonments Act, 2006 read as under:
6. Exemption in case of building- (1) When in pursuance of section 110, a Board has fixed a special rate for the cleansing of any factory, hotel, club or group of buildings or lands, such premises shall be exempted from the payment of conservancy or scavenging tax imposed in the cantonment.
7. It is emphatically clear that the Society is not running on commercial lines with no profit motive and hence is duly covered under the provisions of Section 111(2)(b) of the Cantonments Act, 2006. The learned CEO has wrongly treated the said institution as Commercial for the purpose of deriving heavy tax from the Trust.
8. It is relevant to mention that the Cantonment Board Kanpur has not been recovering any House tax by virtue of Section 99(2)(b) Cantonments Act, 1924 and Section 111(2)(b) of Cantonments Act, 2006 from the said institution knowingly that the property being utilized solely for the purpose of education and no profit being derived.”
11. Reliance has been placed on the copy of the ordersheet dated 11.09.2019, maintained by the Revenue Superintendent. The petitioner prayed to be supplied copy of the material being relied against it to determine the Annual Rental Value of its property. An order was passed that the same may be supplied to the petitioner within a period of 15 days.
12. On the next date fixed, 26.09.2019, the petitioner filed a Supplementary Objection. Thereby, the petitioner objected to the proposed valuation, by relying on the circle rate fixed by the District Magistrate, Kanpur Nagar under the Indian Stamp Act, 1899. Also, it pressed its claim for exemption. That Supplementary Objection reads as under:
“To The Chief Executive Officer, Cantonment Board,
Kanpur Nagar.
Sub:- Supplementary Objections against notice U/s 76 of Cantonments Act, 2006-House No.124, SY No.530/1, Kanpur Cantt.
Ref:- Your Letter Ref.No.CBK/RS/K-1457 dated 13-09-2019 addressed to Shri Baldeo Sahai Sanskrit Mahavidyalaya, 124, Khapra Mohal, Cantt, Kanpur Nagar.
Sir, With reference to your letter/notice dated 13-09-2019 bearing No.KL-
1457 on the details and giving the basis of arriving the expected construction cost as per CPWD Plinth Area 2019 = 32312.50 per Sq.Mtr. 5066.82x32312.50 = 16,37,21,621.25/- ARV @ 5% = 81,86,081.00, the applicant most respectfully begs to submit as following objections:-
1. That the method and the rate followed by the Cantonment Board at arriving at the Annual rental Value of the property at Rs.81,86,081/- is incorrect and exorbitant and is not according to law laid down.
2. That according to circle rates fixed and published by the District Magistrate, Kanpur for calculation of cost of constructions of market value of properties, the market value of Premises No.124, Cantt/Khapra Mohal, Kanpur is as under :-
i) Area of construction 5066.82 Sq.Mtr. x 14000/- = Rs.7,09,35,480/- Depreciation (–) = Rs.71,82,217.35 Depreciated value of constructions = Rs.6,37,53,262/-
ii) A.R.V. 1/20 x 6,37,53,262/- ÷ 20 = Rs.31,87,663/-
Relevant page of the circle rate is Annexed as Annexure-I and copy of valuer report of Mr. P.C. Dubey 25-09-2019 based on D.M. Circle rate is annexed as Annexure-II Land is owned by Govt. of India, Ministry of Defence, hence no value of land can be added.
3. The total cost of construction less depreciation as on 31-03-2019 is Rs.2,33,41,570/-, as per our audited books of accounts and audited balance sheet, the certificate of Chartered Accountant N.Dube and Co. is annexed and marked as Annexure-III, therefore the ARV is 1/20 of Rs.2,33,41,570 is Rs.11,67,078/-
4. That all construction and renovation made in the said premises are as per the sanctioned plan and letter of permission to construct vide letter No.CBK/EE/BNO/57/70 dated 15-04-2009, issued by Defence Ministry Govt. of India. Copy of said letter and sanctioned plan is annexed and marked as Annexure-IV and V.
5. That once again it is reiterated that the building/constructions in premises No.124, Cantt/Khapra Mohal, Kanpur are exempt from payment of house tax since 1940, and as per stipulations contained in the lease deed considering the nature of the use for public and charitable purposes, the Govt. of India, Ministry of Defence has leased out the premises without any lease rent, the subsequent entries to this effect have also been forwarded in the GLR maintained in the Cantt Board, keeping aforesaid exemption/privileges even no property tax is be imposed, as such the very purpose for determination of the ARV is of no use. Copy of GLR is annexed and marked as Annexure-VI.
6. That the applicant has been informed till date no other Cantt Board has ever issued such type of notice for determination of the ARV, as such to issuance of the notice from your goodself, to assess the ARV by applying the CPWD Rate is not justified.
7. That the notice under reference your goodself has proposed to determine the ARV retrospectively i.e. 2017 which is not permissible under law.
It is most respectfully prayed that notice be withdrawn and the proposed ARV may kindly be dropped and in case it is fixed then, in view of the facts stated in the objection dated 23-08-2019 (received on 27-08-2019 in your office) and foregoing paras of this supplementary objections, the house tax on the Premises No.124, Cantt, Kanpur be kindly exempt, under provisions of Section 111(2)(b) of the Cantonments Act, 2006.
Kanpur Nagar. Dated :-26-09-2019 Yours faithfully, Baldeo Sahai Sanskrit Mahavidyalya Through Sd/-
(Smt. Uma Agarwal)”
13. The record reveals, upon such objection being filed, on 26.09.2019 itself, the Tax Superintendent passed an order stating that the valuation/'moolyankan' of the building is assessed - as disclosed by the petitioner. It is further recorded that the same is acceptable to the petitioner. As to that, there is no dispute between the parties.
14. Thereafter, according to the Cantonment Board, it issued the demand notice to the petitioner, as the assessment proceedings stood concluded. Further, on 03.03.2021, the petitioner made an application to the Cantonment Board, Kanpur Nagar to be supplied a copy of the assessment order passed in its case. According to the Cantonment Board, that order was supplied to the petitioner on 08.03.2021. It is the assessment order (according to learned counsel for the Cantonment Board). A copy of that document has been shown to us from the record (hereinafter referred to as the 'alleged assessment order'). The same reads as under:
“Extract From Annual Rental Value Register of Kanpur Cantonment Board.
For the Year 2017 to 2020 Copied by (TRUE COPY) Compared by Sd/-
Chief Executive Officer, Kanpur Cantt.
Tax Supdt. (Arvind Kumar Dwivedi)
15. Further reliance has been placed by learned counsel for the Cantonment Board on a communication dated 10.01.2020 issued under the joint signatures of the Chief Executive Officer, Cantonment Board, Kanpur Nagar and the President Cantonment Board, Kanpur, certifying that all objections had been disposed of. It reads as under:-
“CERTIFICATE UNDER SECTION 77(1) OF THE CANTONMENT ACT (II) OF 2006 Certified that all objections duly made by the owners/occupiers/HOR'S for Triennials Assessment for the period 01.04.2017 to 31.03.2020 in respect of all the buildings situated within the Kanpur Cantonment have been duly considered as per the procedure laid down in the Act. And disposed off and the list amended as is required by our decision on such objections.
The Triennial Assessment has been completed and the same is here by authenticated as required as per provisions of the Cantonment Act (II) of 2006.
(ARVIND KUMAR DWIVEDI) (Brig. NAVEEN SINGH, VRC, VSM) Chief Executive Officer President Cantonment Board, Cantonment Board, Kanpur Kanpur Dated:- 10 Jan, 2020 10 Jan, 2020 Station:- Kanpur Cantt.
Encl:- Annexure I – VIII (Non Residential) Annexure IX – XVI (Residential) 10 Jan 2020
16. Learned counsel for the Cantonment Board have referred to the provisions of Sections-70, 76 and 77 of the Act to establish that the objections that had been filed by the petitioner stood disposed of on 26.09.2019 itself, upon admission (to valuation) made by the petitioner. The fact that all objections had been disposed of, stood certified under Section 76 of the Act by the Chief Executive Officer and the President Cantonment Board, vide communication dated 10.01.2020. As to the existence of the assessment order, they have vehemently referred to the 'alleged assessment order'.
17. Heavy reliance has been placed on the provisions of Section 93 of the Act to submit, if at all, the appeal would lie against the 'alleged assessment order' and not against the order dated 26.09.2019. The 'alleged assessment order' was served on the petitioner on 08.03.2021 (extracted above).
18. In support of his submission, learned counsel for the respondent- Cantonment Board has placed reliance on a decision of the Supreme Court in Shyam Kishore & Ors. Vs. Municipal Corporation of Delhi & Anr., AIR 1922 SC 2279 and another decision of the Supreme Court in St. Mary'S School & Ors. Etc Vs. Cantonment Board of Meerut & Ors., JT 1996 (3) 33. Thus, it has been submitted that in such matters the rule of alternative remedy cannot be avoided and the writ petition may not be entertained. Next, reliance has been placed on another decision of the Supreme Court in Om Prakash Vs. Suresh Kumar, (2020) 13 SCC 188 to submit, once admission had been made in the course of the assessment proceedings, the petitioner was bound by it and it cannot be permitted to resile there from or to challenge the same.
19. On the other hand, it has been strongly contended by the petitioner that there is no order of assessment and, the concession if at all, was made as to the alternative plea – of valuation. However, the petitioner never gave up its claim of exemption, either explicitly or by conduct. Therefore, the objection being raised by learned counsel for the Cantonment Board, is wholly misconceived.
20. Since, in the present case, the preliminary objection itself would lead to an inference on merits, we are not required to examine any further submission. Thus, if it is found that there is no order of assessment, the writ petition would have to succeed as no appeal would lie except against an assessment order, even according to the submission advanced by learned counsel for the Cantonment Board.
21. Having heard learned counsel for the parties and having perused the record, Section 111(2) of the Act reads as under:
“111. Exemption in case of buildings. – (1) …..
(2) The following buildings and lands shall be exempt from any property tax other than tax imposed to cover the cost of specific services rendered by the Board, namely:-
(a) places set apart for public worship and either actually so used or used for no other purpose and rendering services free of cost without deriving any income whatsoever;
(b) buildings used for educational purposes, public libraries, play grounds and dharamshalas which are open to the public and from which no income is derived;
(c) hospitals and dispensaries maintained wholly by charitable contributions;
(d) burning and burial grounds, not being the property of the Government or a Board, which are controlled under the provisions of this Act;
(e) buildings or lands vested in a Board; and
(f) any buildings or lands, or portion of such buildings or lands, which are the property of the Government.”
22. Undisputedly, the Act does not provide for any separate procedure or mechanism to deal with the application for grant of exemption. On the other hand, Section 66 of the Act creates the general power of taxation of the Cantonment Board. It reads as below:
“66. General power of taxation.- (1) The Board shall, with the previous sanction of the Central Government, impose the following taxes for the purposes of this Act:-
(a) property tax; and
(b) tax on trades, professions callings and employments.
(2) In addition to the taxes specified in sub- section (1) the Board may, for the purposes of this Act, impose any tax which under any enactment for the time being in force may be imposed in any municipality in the State in which the cantonment is situated: Provided that the Board shall revise every five years, the rates of taxes imposed under sub- sections (1) and (2): Provided further that the Board shall not abolish any tax imposed under this section or vary it to the Board' s financial disadvantage without the prior sanction of the Central Government and the tax mentioned in sub- section (2) shall not exceed the ceiling prescribed in this behalf by clause (2) of article 276 of the Constitution.
(3) The taxes specified in sub- sections (1) and (2) shall be imposed, assessed and collected in accordance with the provisions of this Act, rules and the bye- laws made thereunder.
(4) Any tax imposed under this section shall take effect from the date of its notification in the Official Gazette or where any later date is specified in this behalf in the notification, from such later date.”
23. Clearly, the charge of tax has been created under Section 66 of the Act. The property tax being sought to be imposed on the petitioner arises under that provision.
24. Section 69 of the Act provides mechanism to impose the tax. It requires a proposal to be prepared by the Cantonment Board to levy such tax. Section 70 of the Act, confers a right on the affected person to raise an objection to the proposal made under Section 69 of the Act. Section 74 of the Act provides for the incidence of tax – primarily on the actual occupier.
25. Preparation of a new assessment list, every three years, is provided under Section 80 of the Act. Again, the right of objection is given to the occupier even at the stage of preparation of the assessment list. It is so because Sections 75 to 79 have been made applicable to preparation of a new assessment list.
26. Then, section 77 of the Act reads as under:
“77. Authentication of assessment list.- (1) When all objections made under section 76 have been disposed of, and the revision of the valuation and assessment has been completed, the assessment list shall be authenticated by the signatures of the Chief Executive Officer and the President Cantonment Board, who shall, certify that except in the cases if any, in which amendments have been made as shown therein no valid objection has been made to the annual rental value or any other matters entered in the said list: Provided that whenever the General Officer Commanding- in- Chief the Command or the Principal Director comes to the conclusion that the assessment lists or any entries therein have not been correctly prepared and are prejudicial to the interests of the Board or of the Central Government, they may suo moto re- open the said assessment and issue such directions as deemed fit.
(2) The assessment list so authenticated shall be deposited in the office of the Board, and shall there be open, free of charge, during office hours to all owners lessees and occupiers of property comprised therein or the authorised agents of such persons, and a public notice that it is so open shall forthwith be published.”
27. Also, to complete the consideration of submission advanced by learned counsel for the Cantonment Board, the provisions of Section 93(1) of the Act read as under:
“93. Appeals against assessment.- (1) An appeal against the assessment or levy of, or against the refusal to refund, any tax under this Act shall lie to the District Court.”
28. What clearly emerges from a consideration of the aforesaid provisions of the Act is, upon an objection being filed by the occupier/person affected, the same has to be dealt with and decided before the assessment list may be revised and/or finalized. Demand and recovery of tax may follow that assessment order. That procedure is governed by Section 98 of the Act, onwards.
29. The first objection raised by the petitioner being to its liability to tax, the same would not be hit by acquiescence or res-judicata, looking at the past conduct, for an earlier tax period. That objection has been raised in terms of a general exemption granted by the statute, under Section 111(2)(b) of the Act, to all educational institutions. Therefore, the fact that the petitioner may not have claimed the same earlier, would also have no effect on the maintainability of the objections filed on 23.08.2019.
30. In the instant case, it is undisputed between the parties that on 23.08.2019, the petitioner had filed an objection for the tax period 2017- 20 wherein, as noted above, clearly, the claim was made for exemption under Section 111(2)(b) of the Act. Upon that objection, an order dated 11.09.2019 was passed. It reads as below:
“श्रीराम जी अग्नोत्री िदनांक 11.9.2019 सुनवाई हेतु उपितिस्थितित हुये, उन्होने वािषरक मूल्यांकन का कर िनधाररण लगाये गये के िवषयगत मे िववरण लगा है। जो िक उनको 15 िदनों के अन्दर उपलब्ध करा िदया जायेगा ह 0 अपठनीय 11.09.2019”
31. It clearly does not lead to any inference that the petitioner gave up its claim of exemption on that date. The order sheet entry only records that in the course of the assessment proceedings, the petitioner prayed to be supplied the adverse material being relied against it for the purposes of finalizing the assessment. It was then recorded that the same be provided within a period of fifteen days. Undisputedly, the matter was again heard on 26.09.2019.
32. The supplementary objections filed by the petitioner on that date undoubtedly refer to the valuation of the building. However, as is apparent from the contents of those supplementary objections (extracted above), the petitioner explicitly signified to the respondent-Cantonment Board, that it was pressing its claim of exemption. It is clear from the contents of paragraph no. 5 of the supplementary objection dated 26.09.2019.
33. Perusal of the orders dated 11.08.2019 and 26.09.2019 read with the supplementary objections and the original objection dated 23.08.2019, clearly brings out that the petitioner had raised two objections to the proposed assessment. First, the petitioner claimed exemption and therefore set up a plea of no liability to tax. Second, (that is clearly in the alternative), the petitioner objected to the valuation of the property as was proposed under Section 69 of the Act. It offered an alternative method of valuation, relying on the Circle Rate prescribed by the District Magistrate for the purpose of stamp duty payment under the Indian Stamp Act, 1899. That being the status of the proceeding, the further order dated 26.09.2019 only dealt with the alternative submission made by the petitioner (with respect to valuation). Thus, that order reads as below:
“श्रीमती उमा अग्रवाल िद0 26.09.19 को उपितिस्थितित हुई इनका वािषरक मूल्यांकन (DM द्वारा प्रकािशित रट िलस्ट पर िकया है) र0 35,46,770/= पर िनधारिरत िकया गया है जो उन्हे स्वीकार है। ह 0 अपठनीय 26.09.2019”
34. The aforesaid order dated 26.09.2019 does not in any way either record or indicate that the petitioner had given up its claim of exemption raised under Section 111(2)(b) of the Act. For a concession to arise and be relied upon in any judicial or quasi-judicial proceedings, the same must be expressly made and clearly recorded in the order or in any document or evidence led by the party making the concession. The concession cannot be inferred in face of express intent of the petitioner as expressed by means of paragraph no.5 of the Supplementary Objection dated 26.09.2019.
35. In the present case, we do not find an iota of evidence or material in support of the contention vehemently urged by learned counsel for the Cantonment Board that the petitioner had conceded or abandoned its claim of exemption. The submission is based entirely on the conduct of the petitioner in having made the alternative objection as to valuation/'moolyankan'. Inasmuch as the said alternative objection does not conflict with the primary objection and had been raised at the very initial stage on 23.08.2019 and further inasmuch as the petitioner never gave up its claim of exemption but, appears to have continuously pressed and supported it by filing documentary evidence in support thereof (which is also part of the record produced before us), being a judgement in Petition No. 47/70 of 2009 passed by the District Judge, Kanpur Nagar under Section 36 of the Indian Trust Act, dated 13.01.2010; an exemption certificate granted under the Income Tax Act, 1961 under Section 10(23-C)(vi) dated 19.09.2013 and; the supplementary objection dated 26.09.2019, the objection based on alleged concession is rejected.
36. In total absence of any document or statement ever made to withdraw that exemption claim, clearly, the respondents were obliged to deal with and decide the the same by a reasoned and speaking order. Only after such decision and upon the exemption claim being negated an assessment may have come into existence in accordance with the valuation of the petitioner's property, in terms of the order dated 26.09.2019.
37. Thus, the further submission advanced by learned counsel appearing for the Cantonment Board that the assessment order came into existence by way of concession is clearly misconceived and is accordingly, rejected. Interestingly, it is not the case of the Cantonment Board that the order dated 26.09.2019 is an assessment order. Though the Cantonment Board does not claim to have decided the claim of exemption raised by the petitioner and though there is no evidence of that claim having been withdrawn, the Cantonment Board claims that the 'alleged assessment order' (undated) came into existence. It is further claimed to have been served on 08.03.2020.
38. The 'alleged assessment order' order referred too and heavily relied upon by the learned counsel appearing for the Cantonment Board is not an order but only an extract of the Annual Rental Value Register for the period 2017 to 2020. The same is undated. It contains no recital or consideration of any objection raised by the petitioner either by way of claiming exemption or to the rate list proposed by the respondents. It also does not refer to any order passed by any authority to either reject the exemption claimed by the petitioner or the objection as to valuation.
39. In any case, that document cannot be termed as an order as it does not decide or deal with any objection raised by the petitioner. The extract of the annual rental value register is clearly not an order but only a record of consequential entries, arising under Section 75 of the Act. It would remain in the nature of a secondary evidence. In the instant case, upon perusal of the record, we find there exists no evidence of an assessment order. Therefore, in absence of an assessment order, the entries recorded in the Annual Rental Value Register are of no consequence. That document is neither an order nor it creates any rights or liabilities.
40. Reliance placed on Section 77 of the Act is wholly misconceived, inasmuch as the stage of the authentication of assessment list would arise only after (all objections) made under Section 76 of the Act had been dealt with and disposed of. Inasmuch as there is no separate procedure provided to deal with the claim for exemption under Section 111(2)(b) of the Act, it will remain an objection filed by the petitioner. In absence of an order deciding those objections, the claim of exemption made by the petitioner is still pending.
41. The submission advanced by learned counsel for the Cantonment Board is completely misconceived perhaps arising from an afterthought to somehow defend the notice of demand, by placing before the Court an extract from the annual rental value register. We do not approve of such a conduct of a responsible body like the Cantonment Board, in having taken such a stand till the very end.
42. Since an appeal may lie under Section 93 of the Act only against the assessment or levy of tax, in absence of that order of assessment or levy, we cannot see how the petitioner may avail the remedy of appeal against extract of the Annual Rental Value Register, as has been strongly suggested by the learned counsel for the Cantonment Board.
43. In that view of the matter, the decisions cited by learned counsel for the respondent both, to enforce the statutory alternative remedy of appeal and also to rely on the concession, are found to be wholly distinguished. In the first place, there is no concession found recorded and therefore the petitioner cannot be non-suited for that reason. Second, in absence of any assessment order, there does not arise a right of appeal, in favour of the petitioner.
44. In view of the facts noted above, the writ petition succeeds and is allowed with cost of Rs.50,000/-.
45. Since, the entire amount of disputed tax has been recovered upto 16.07.2021 whereas the writ petition came for first hearing on 19.07.2021, we provide that the entire amount (Rs.21,99,398/-) so recovered be refunded to the petitioner within a period of four weeks from today.
46. It is further provided that respondent no.2 shall now fix a date to deal with the objection of the petitioner based on the exemption claimed under Section 111(2)(b) of the Act, within a period of four weeks from today and pass a reasoned and speaking order after dealing with that claim made, within a further period of one month therefrom.
47. The original record produced today, has been returned to Sri Neeraj Dubey, learned counsel appearing for the Cantonment Board.
Ara Moonis Order Date :- 12.8.2021 Abhilash/Shubham Dayal Singh Justice Saumitra Digitally signed by Justice Saumitra Dayal Singh Date: 2021.08.16 10:31:37 +05'30'
Justice Naheed Digitally signed by Justice Naheed Ara Moonis Date: 2021.08.16 10:30:06 +05'30'