S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
S. B. Civil Writ Petition No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. DATE OF ORDER
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13. h September 2013 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J.L.Purohit, Sr. Advocate assisted by Mr.N.R. Budania, for the petitioner. Mr. R.L. Jangid, AAG & Sr. Advocate with Mr. K.K. Bissa, for the respondents. --- 1. The petitioner in the present case has challenged the levy of land tax vide the demand notice dated 24.7.2009 (Annex-10), under the provisions of Rajasthan Finance Act, 2006 for assessment years 2009-10 raised by the Assessing Authority, (Sub-Registrar), Bikaner.
2. Learned counsel for the petitioner submitted that the respondent-Assessing Authority has not given reasonable opportunity of hearing and has issued demand notices without complying with the principles of natural justice and demand of land tax is illegal. Therefore, the impugned assessment order and demand notice deserve to be set aside.
3. Since in the writ petition, vires of Rule 24 (i) of the Rajasthan Land Tax Rules, 2006 has also been challenged, the said S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 2/8 challenge does not survive in view of Division Bench decision of this Court in the case of G.K.W. Vs. State of Rajasthan reported in 2008 (3) WLN 1.in which the validity of said enactment including the Rules framed thereunder has already been upheld by this Court.
4. The coordinate bench of this Court (Jaipur Bench) in S.B.C.W.P. No.9972/2007- Mohd. Jamil Vs. State of Rajasthan & Ors., decided on 04.03.2011 and other connected writ petitions, has held has under: “So far as the objection of alternative remedy is concerned, this objection cannot be sustained, as rightly argued by learned counsels for the petitioners because this Court is inclined to accept the argument that principle of natural justice have been utter violated in the present case ad opportunity of hearing which is statutorily provided to be afforded to the assessee or the petitioners in this case, has not at all been granted. Moreover, this Court has already set aside similar demand notices/assessment orders in identical writ petitions at the Principal Seat, Jodhpur. The arguments of petitioners, which have been noticed in detail, have not been effectively refuted by the respondents, go to show the casual and mechanical manner in which assessment orders have been framed in these matters. The provisions of main enactment as also the rules framed thereunder have been complete violated while framing assessment orders. Definition of 'land' as given in Section 38 (c) of the Rajasthan Finance Act, 2006 has also not been taken into consideration. The provisional assessment lists were finalised without considering the objections submitted by the petitioners and without S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 3/8 providing them opportunity of hearing as envisaged in Section 42 (2) of the Act. The purpose of providing two stages of assessment i.e. one provisional and other final is precisely to enable the assessee to file his objections on provisional assessment list and the assessing authority to examine them after giving opportunity of hearing to the assessee so that if on consideration he decides to uphold any of these objections, or otherwise, he may revise or modify the entries in the provisional assessment list or confirm the same. There is then another illegality peculiar to this case which is that provisions contained in Chapter VII from Section 37 to 63 were brought into force by notification of the government in exercise of its power u/s. 37 (2) with effect from 25.9.2006 because this notification was issued by the government on 25.9.2006 which was published in the gazette extraordinary on 27.9.2006. When the notification u/s. 37 (2) itself has been issued on 25.9.2006 at a later point of time, how could the government by issue of notification dated 9.3.06, a date falling much before 25.9.2006 notification, fix the class of lands and rate of tax because of the provisions of the Chapter VII starting from Section 37 to Section 63 which were brought into force only with effect from 25.9.2006 by virtue of the aforesaid notification issued u/s. 37 (2). In all these matters, public notice of provisional assessment list has not been published in form no.2 in any public daily as per requirement of Rule 5, supra. Moreover, the Government could not retrospectively by notice u/s. 42 (4) dated 23.2.2007 make the assessment orders effective from 25.9.2006, the date on which the Act was enforced because an assessment order can be passed only after S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 4/8 providing opportunity of hearing and deciding the objections of the concerned assessees as already noticed above. The manner in which the assessment orders have been framed in these matters leaves much to be desired. Although this is a matter for consideration of the State Government but in the facts of these case, this Court is constrained to observe that the State Government would be well advised to train its officials in the matter of framing assessment orders. The task of framing assessment orders in these matters appear to have been entrusted to Registrars/Sub-Registrars of the Stamp and Registration Department and the records reveal, they may not be that trained in such matters like some of the other taxation departments of the government, which are more conversant with the method and manner of framing assessment orders. As is evident from the assessment orders framed in these matters, they have been found completely lacking in that expertism. In view of above discussion, all these petitions deserves to be allowed and are accordingly allowed. The impugned orders of the assessment/demand notices in each of these cases are quashed and set aside and the matters are remanded back to the assessing authority in each of these matters, who is directed to frame fresh assessment order after providing opportunity of hearing to concerned assessees keeping in view the aforesaid discussion and according to provisions contained in the Act and the Rules. So far as the amount of 50%, which has been ordered to be deposited with the assessing authority pursuant to the impugned demand notices is concerned, it is directed that deposit of such amount shall abide by final S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 5/8 outcome of the fresh assessment orders that may be passed by the assessing authority in each of these cases and in the case of amount of demand being reduced, the excess amount shall either be adjusted against the subsequent year, if by that time, fresh assessment order is framed and tax has become due for the subsequent year and if no such fresh assessment becomes due, the excess amount shall be refunded with interest @ 6% per annum. (MOHAMMAD RAFIQ), J.”
5. Learned counsel for the petitioners also produced a copy of as interim order dated 04.04.2011 passed by Division Bench of this Court in D.B.C.W.P. No.2948/2011-J.K. White Cement Works Vs. State of Rajasthan & Ors., wherein the while admitting the writ petition, the Division Bench has directed the petitioner to deposit 30% of the demanded amount of land tax, and stayed the remaining part till the next date. The order dated 04.04.2011 in the case of J.K. White Cement Works (supra), is reproduced herein below: “D. B. CIVIL WRIT PETITION No.2948/2011 DATE OF ORDER
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4. 4/2011 HON'BLE THE CHIEF JUSTICE Mr. ARUN MISHRA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Ramit Mehta, for the petitioner. Admit. Issue notice. Issue notice of the interim relief also. Learned counsel has relied upon the decision of this Court in Prem Chand Jain vs. State of Rajathan, S.B.C.W. Petition No.2184/2011. In view of the above decision rendered by this Court on similar issue, thirty percent of the demand amount be S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 6/8 deposited by the petitioner and the remaining part shall remain stayed till the next date. Let requisite steps be taken within ten days. Process fee be paid by registered post with acknowledgment due within ten days failing which the writ petition as also the interim stay shall stand dismissed automatically without reference to the bench. (KAILASH CHANDRA JOSHI),J.
(ARUN MISHRA), CJ”
6. The questions of facts relating to the extent of taxability on land in question or particular portion of land being exempted etc. as raised in the present writ petition, are all questions of facts and they are required to be determined by the authorities under the Act. Against the assessment order by the respondent Sub-Registrar, an appeal lies before the D.I.G. (Stamps) as per Section 48 of the Rajasthan Finance Act, 2006, and under Section 51, a revision before the State Government, which are quoted below for ready reference:
“48. Appeals: - (1) Any person aggrieved by an order under sections 42, 43 or 44, may at any time before the expiry of thirty days from the date of the order prefer an appeal to the Appellate Authority. Provides that no appeal shall be entertained unless it is accompanied by satisfactory proof of payment of not less than one half of the tax assessed and payable by the person preferring the appeal. (2) The Appellate Authority may admit an appeal after the expiry of the period referred to in sub-section (1), if he is satisfied that there was sufficient cause for to not preferring the appeal within that period. (3) Every appeal under this section shall be presented and verified in the manner prescribed. S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 7/8 (4) The Appellate Authority shall, after affording an opportunity of being heard to the Appellant, pass such order on the appeal as its thinks fit and shall sent a copy of the order to the Assessing Authority and such other persons as may be prescribed. (5) The assessment list, shall where necessary, be modified in accordance with the decision of the Appellate Authority.
51. Revision: The State Government or such other Authority, as may be appointed by it in this behalf, may, on its own motion or on application made, call for the record of any proceedings or order of any authority under this Chapter for the purpose of satisfying itself as to the legality or propriety of such proceeding or order, and may pass such order in reference thereto as appears to it necessary for the ends of justice.”
7. The amount already deposited or now required to be deposited shall remain subject to final order passed by the Sub- Registrar and in appeal by the appellate authority, namely, D.I.G. (Stamps). In view of availability of alternative remedy to the petitioner under the Act, this writ petition cannot be entertained.
8. Accordingly, respectfully following the aforesaid judgments of this Court, this writ petition is disposed of and the petitioner-assessee is at liberty to avail his alternative remedy by way of appeal within a period of one month from today and the said appellate authority shall decide such appeal on merits after giving an opportunity of hearing to the petitioner-assessee, preferably within a period of six months from today. The petitioner shall deposit 30% S.B.C.W.P. No.11750/2009 Vijay Kumar Sharma V/s State of Rajasthan & Anr. Order dt:
13. 109/2013 8/8 (Thirty percent) of the impugned demand under the assessment order and demand notice for AY year 2009-10 within a period of one month from today for safeguarding the interest of State's revenue, after taking into account the amount already deposited, if any, and such deposit shall remain subject to the final adjudication by the speaking order, to be passed by the appellate authority and shall abide by the same. No costs. (DR. VINEET KOTHARI), J.
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