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Judgment
P. Jyothimani, J.—Heard Mr. V. Babu, learned Counsel appearing for the petitioners as well as Mr. Pala Ramasamy, learned Special
Government Pleader appearing for the respondents.
The issue involved in these cases is about the property demand notices issued to the petitioners concerned by the first respondent Pudukkottai
Municipality in the form of prosecution notice dated 14.02.2008 as contemplated under Rules 30 to 34 of Schedule IV of the Tamil Nadu District
Municipalities Act, 1920 (hereinafter referred to as ''the Act''). As per the said prosecution notice dated 14.02.2008, the petitioners are directed
to pay an amount of Rs. 1,52,893/- and Rs. 3,00,922/- respectively, being the amount of tax due on the basis of escaped assessment for the
period from second half of 2002-03 to the first half of 2007-08.
The impugned order is challenged by the petitioners mainly on the ground that as per Section 345 of the Act, wherein the limitation of three
years period is prescribed for recovery of the dues to the municipality and beyond the said period, the Municipality is not entitled to recover the
dues after the expiration of the said period of three years from the date on which distraint order first have been made.
In the present case, according to the petitioners, the notice dated 9-7- 2007 should be taken as a distraint and the said notice goes back to the
year 2002-2003 first half and therefore, the claim of the first respondent Municipality itself is hit by the period of limitation u/s 345 of the Act. It is
also further case of the petitioners that the assessment itself has not been properly done by way of revision. Even though, a show cause was given
in respect of the said assessment and pursuant to which, the petitioners have made their objections on 20.10.2007, the first respondent has not
taken note of various objections and passed orders thereof and therefore, the claim made by way of the prosecution notice, is not sustainable in
law.
No counter affidavit has been filed on behalf of the first respondent. However, the learned Special Government Pleader, appearing for the
respondents Municipality, on instructions, would submit that the claim was made in the impugned prosecution notices based on an earlier demand
notice dated 09.07.2007. Thereafter, giving 15 days time as contemplated under the provisions of the Act and considering the objections made by
the petitioners, the final orders came to be passed in December, 2007. Since the amount was not paid by the petitioners, the impugned prosecution
notices were issued by the first respondent Municipality. Further, it is his contention that the assessment is permissible for a period of six years from
the date of order. As per Section 117-A of the Act, as amended in the year 1997, and this is treated as ''escaped assessment'' and on this basis,
impugned notices were issued against the petitioners. He would also submit that as per the said provision, the assessment made is valid for a period
of six years. In any event, according to him, as against any order of assessment, an appeal lies to the Taxation Appeals Committee, u/s 89 of the
Act. He would also rely upon a Division Bench judgment of this Court in M.L. Krishnamoorthy (died) and M.K. Sathyamurthy Vs. The
Government of Tamilnadu and The Gudiyattam Municipality, to substantiate his contention. In the said decision, the right of the petitioners to file
appeal as per District Municipalities Act, especially, u/s 89 of the Act, has been discussed by the Division Bench of this Court. The relevant
portion of the Division Bench judgment is extracted as follows:
It is not denied by the learned Counsel for the appellant that the provisions of District Municipalities Act provides for an Appeal remedy to the
Taxation Appellate Committee u/s 89 of the District Municipalities Act and further Appeal to the District Court. On the face of the availability of an
alternative remedy, the plea taken by the appellant that the entire building has to be taken as one unit and different numbers allotted to the adjacent
premises could not be viewed as independent units could effectively be agitated before the Taxation Appellate Committee. On the face of the
assessment made, the proper course for the appellant herein is to seek the Appeal remedy.
Therefore, according to him, the petitioners have an effective alternate remedy by way of appeal available u/s 89 of the Act and accordingly,
without exhausting such remedy, the petitioners approached by way of the writ petitions and therefore, the writ petitions are not maintainable.
Section 81 of the Act empowers the Municipality to impose property tax. The provision contemplates various procedures to be followed for the
purpose of assessment of the property tax and the said provision has also been explained in Section 82 of the Act, wherein, the Municipality, while
assessing the property tax, is bound by the prescription of minimum and maximum rates fixed by the State Government. Against any order of
assessment u/s 89 of the Act, a Taxation Appeals Committee is constituted to which, an appeal can be filed. The constitution of the Taxation
Appeals Committee is u/s 89 of the Act, which also provides for further appeal to the District Judge after the order of Taxation Appeals
Committee. Section 89 of the Act reads as follows:
Taxation Appeals Committee-(1) There shall be a Taxation Appeals Committee for hearing and disposing of an appeal preferred by any
person who is not satisfied with the assessment order made by the executive authority under this Act other than the orders relating to the duty on
transfer of property,:
(i) for every Third Grade municipality consisting of the Chairman of the municipal council who shall be the Chairman of the Taxation Appeals
Committee and such number of members as may be notified by the State Government from among the members of the Third Grade municipality;
(ii) for every municipality, consisting of the Charmian of the municipal council who shall also be the Chairman of the Taxation Appeals Committee
and four councillors elected by the council.
(2) The business of the Taxation appeals Committee shall be transacted in accordance with the rules made by the State Government in this behalf.
(3) An appeal against the decision of the Taxation Appeals Committee may be filed within thirty days from the date of the order to the District
Judge.
(4) No appeal shall be entertained by the District Judge, unless the appellant deposits with the Third Grade municipality or municipality, as the case
may be, the entire amount of tax as decided by the Taxation Appeals Committee [and the appellant shall continue to deposit the property tax with
the Third Grade municipality or, municipality, as the case may be, as decided by the Taxation Appeal Committee with the disposal of the appeal by
the District Judge.].
(5) Where as a result of any order passed in an appeal any amount already deposited is in excess of the tax due, the difference, after deducting the
tax due, shall be adjusted towards the tax, and fine due in respect of any other period, by the municipality.
A perusal of Section 89 of the Act makes it clear that any person, who is aggrieved by assessment of tax made by the Municipality, is entitled to
approach the Taxation Appeals Committee. As far as the filing of appeal to Taxation Appeals Committee is concerned, the Section does not
prescribe any condition for deposit of any amount and so on. On the other hand, Section 89(3) makes it clear that any appeal filed to the District
Judge against the order of Taxation Appeals Committee shall be within 30 days and on filing such appeal, the Appellant has to deposit the amount
of tax, which has been assessed by the Taxation Appeals Committee.
Section 117(A) which empowers the Municipality to assess the cases of ''escaped assessments'' was inserted by Tamil Nadu Act 3 of 1997.
The said provision is as follows:
117-A. Power to assess in cases of escape from assessment:- Notwithstanding anything to the contrary contained this Act or the rules made
thereunder, if, any reason, any person liable to pay any of the taxes order leviable under this chapter has escaped assessment to any half-year or
year or has been assessed to any half-year or year at a rate lower than the rate at which he is assessable or, to the case of property tax, has not
been duly assessed in any half-year or year consequent on the building or land concerned having escaped proper determination of its annual value,
the commissioner may, at any time within six years from the date on which such person should have been assessed serve on such person a notice
assessing him to the tax or fee due and demanding payment thereof within fifteen days from the date of such service; and the provisions of this for
and the rules made thereunder shall, so far as may be, apply as if the assessment was made in the half-year or year to which the tax or fee relates.
Therefore, the municipality is entitled to make assessment of any tax which has been escaped from the attention of the authority for a period six
years from the date of assessment. The said Section 117-A which has been introduced in the year 1997 itself provides for a notice to be given to
the assessee by the Municipality giving 15 days time. This is relevant because in the order of demand made by the first respondent Municipality, a
reference to the Rules 9 to 10 of Schedule IV of Act has been made. Schedule IV of the Act which relates to the taxation and finance rules deals
with taxation rules in part I. The Rules 6 to 15 in the said Rules have been omitted by the Government in Tamil Nadu Act 45 of 1997. Even
though, the said rules have been omitted as early as in 1997, the first respondent Municipality has chosen to quote the said Rules 9 and 10 which
are no more in the statute book. But that itself is not sufficient to hold the impugned prosecution notice as invalid for the simple reason that Section
117-A as enumerated above is an inbuilt provision which itself contains the procedure to be followed for the purpose of deciding about the
escaped assessment. In the present case, it is not in dispute that a demand notice has been given and a prior notice giving more than 15 days as
contemplated u/s 117-A of the Act was also given and in fact, the petitioners have submitted their objections and only after considering the same,
final orders came to be passed in December, 2007. Therefore, merely wrong quoting of a Rule in the demand notice will not make the impugned
order of prosecution notice as invalid.
As far as the next submission made by the learned Counsel for the petitioners that the demand made in the impugned prosecution notice is hit
by the limitation u/s 345 of the Act and the same is not sustainable. The Section 345 of the Act reads as follows:
Limitation for recovery of dues:- No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of
any sum due to the municipal council under this Act after the expiration of a period of three years from the date on which distraint might first have
been made, a suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum.
On a perusal of Section 345 of the Act, makes it clear that no distraint proceedings or suit can be initiated or no prosecution can be
commenced in respect of any sum due to the municipal council after expiration of three years from the date on which distraint might first have been
made.
The meaning of the words ""distraint might first have been made"" is significant in the sense that the same has to be read along with the charging
provision, i.e., Section 117-A. When Section 117-A enables the Municipality to impose tax within six years from the date of assessment in respect
of the escaped assessment, there is no question by applying of the said words ""distraint might first have been made"", as Section 345 Makes it clear
that the claim made by the first respondent municipality is well within the time.
In view of the aforesaid discussion and in view of the fact that an effective alternative remedy is available as against the impugned notices by
way of appeal, the writ petitions are dismissed, giving liberty to the petitioners to approach the Taxation Appeals Committee by way of filing
appeal u/s 89 of the Act. The petitioners shall file such appeal to the Taxation Appeals Committee within a period of 30 days from the date of
receipt of a copy of this order and on such appeal being filed, the Taxation Appeals Committee is directed to receive the same without rejecting it
on the ground of limitation and decide it on merits and in accordance with law, expeditiously in any event, within a period of eight weeks from the
from the date of receipt of the copy of this order. Pending such decision by the Taxation Appeals Committee, the impugned prosecution notices
issued against the petitioners shall be kept in abeyance by the first respondent Municipality on condition that the petitioners shall deposit 50% of
the amount with the first respondent Municipality, within a period of two weeks from the date of receipt of a copy of this order. No costs.
Consequently, the connected miscellaneous petitions are also dismissed.