SBCWP NO.4780/2000. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4780/2000. Golden Collection (India) Pvt.Ltd. & Anr. Vs. State of Rajasthan & Ors. Date of Order:- April 23, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Anant Kasliwal for the petitioners. Shri B.C. Chirania for the respondents. ****** BY THE COURT:- This writ petition has been filed by the petitioners against the communication dated 11/5/2000 which is a show cause notice calling upon them to explain why their land and building may not be assessed for paying tax by invoking powers under Sections 15-B of the Rajasthan Land & Building Tax Act, 1964 (for short the “Act”). Petitioners have also challenged the order dated 11/5/2000 which is again a show cause notice and assessment order SBCWP NO.4780/2000. 2 dated 6/9/1999 by which certain directions were issued by respondent No.2 to the assessing authority. 2) Shri Anant Kasliwal, learned counsel for the petitioners has argued that Director Land & Building Tax Department vide letter dated 6/9/1999 has instructed the assessing authority to frame re- assessment order in the case of the petitioners. In the originally passed assessment-order dated 25/3/1998, assessing authority on his own took residential plots as the basis for valuing the land and building of the petitioners and on that basis valued the same at Rs.27,27,000/- as on 1/4/1994 and raised tax demand of Rs.36,83,900/-. It is argued that the subsequent notice was issued without application of mind by the assessing authority who simply acted on the instructions of the Director LBT. Petitioners have also challenged the orders dated 29/5/2000 (Ann.7) by which the assessment in his case was re-revised and dated 21/8/2000 (Ann.17). It is submitted that impugned show cause notice therefore is liable to be set- aside. Learned counsel argued that originally when he filed appeal against first re-assessment order dated 29/5/2000 which was kept pending. During pendency of such appeal, respondents cannot call SBCWP NO.4780/2000. 3 upon the petitioners to show cause why assessment order itself be not revised. Respondents could not pass impugned order of re-assessment on 21/8/2000. Learned counsel has submitted that very show cause notice is bad in law as the assessing authority passed the impugned order on the mere instructions of the Director LBT without applying its mind and wrongly invoked his powers under Section 15-B re- framing the order dated 11/5/2000 particularly when there was no concealment on the part of the petitioner. Petitioner from the very beginning was contending that land and building in question was being used by them as a factory and the assessing authority in the original assessment order has taken note of this fact. It cannot therefore be said to be a case of escaped assessment. Learned counsel for the petitioner submitted that even in the face of the pending appeal, the assessing authority could not re-revise the assessment and this Court taking note of this argument, while admitting the writ petition on 28/3/2001, stayed recovery proceedings however observing that appellate authority shall be free to decide the appeal in accordance with law. 3) Learned counsel for the petitioners submitted that till date appeal of the petitioner SBCWP NO.4780/2000. 4 against first order of assessment is not decided despite liberty granted by this Court in the aforesaid order. Both the assessment orders are therefore liable to be quashed and set-aside. Learned counsel for the petitioners placed reliance on the judgment of Division Bench of this Court in Smt.Kaushliya Devi & Others Vs. Assistant Director, Urban Lands & Buildings Tax, Jodhpur & Others : 1988 WLN (UC) 69 to argue that in the said case re-assessment made by the assessing authority on the basis of instructions issued by the Director Land & Building Tax Department was quashed by the Division Bench holding that the power exercised under Section 15-B of the Act by the assessing authority is a statutory power and he alone could have exercised such power but while doing so, he cannot abdicate his responsibility in favour of anyone. There is no provision in the Act empowering the Director to issue specific direction as contained in the letter and therefore he had no jurisdiction to do so. 4) Shri B.C. Chirania, learned counsel for the respondents has opposed the writ petition and argued that while petitioners have assailed two re- assessment orders Annexure-7 & Aannexure-17 in this petition, he separately filed an appeal against the SBCWP NO.4780/2000. 5 first assessment order dated 29/5/2000 (Ann.7) and in view of pendency of that appeal, this writ petiton would not be maintainable. It was argued that consideration of case on merits even against the second assessment order dated 21/8/2000 (Ann.17), would have no bearing on the first assessment order dated 29/5/2000 (Ann.7) therefore petitioners should be relegated to the remedy of appeal even against the second assessment order. Learned counsel submitted that Director, who is head of the department, has the authority to issue instruction in question and no exception can be taken thereto. 5) Upon hearing learned counsel for the parties and perused the material on record, I find that there is no dispute in so far as two facts are concerned; (i) that petitioners have throughout been contending that their lands and buildings were being used for factory purposes and (ii) that Inspector of the Land & Building Tax Department itself while submitted value of their lands & buildings, made rate of the original land as basis of such valuation and that was primarily due to the fact that lands and buildings in question were located in the residential area, wherefrom the factory was being run. Subsequent order of re- SBCWP NO.4780/2000. 6 assessment to show cause not once but twice were issued to the petitioners by the assessing authority admittedly, as per the instructions of the Director LBT who is competent to issue order dated 11/5/2000 even when appeal of the petitioner against the first assessment order was pending. Learned counsel for the petitioners has made grievance and rightly that even after closure of the Land & Building Tax Department and transfer of its pending recovery cases to the Municipal Corporation and appellate powers to the Additional District Magistrate (North), the progress proceeding of appeal is being made and hearing of the appeals are being mechanically adjourned. In fact learned counsel for the petitioners would submit that not a single appeal has been decided by the appellate authority except in cases where specific directions were issued by this Court. In the face of such a situation, objection taken by the respondents that the petitioners have not availed of remedy of appeal even against the second assessment order, cannot be accepted. What is more significant to be noticed is that revised assessment order not once but twice were issued in the case of the petitioners and existence of instructions of the Director LBT vide Letter No.F.4 SBCWP NO.4780/2000. 7 (20) Accounts/LBT/99/3159 dated 6/7/2000 is not only denied by the respondents but on the contrary in para 6 of their counter affidavit, it is stated by them that if the front assessment was wrongly made by the assessing authority, Director, who is head of the department, had power to direct for issuing the correct assessment, if the substantial material before the assessing authority for reopening the earlier assessment order is placed. Substantial material is not specified. While petitioners would contend that all such material which was already there before the assessing authority at the time of framing original assessment. 6) Assessing authority has simply in the revised assessment order mentioned two statements of fact that (i) lands and buildings were being used for commercial use and (ii) this was owing to omission on the part of the assessee to bring this fact to the notice of the assessing authority and therefore the matter was required to be reopened by invoking Section 15-B of the Act and re-assessment order was required to be framed. But on perusal of the first assessment order dated 29/5/2000 (Ann.7), it is clearly evident that this very material was already there before the assessing authority. In SBCWP NO.4780/2000. 8 such a case the assertion that it should be a case of escaped assessment, cannot be accepted either on logic or fact. Division Bench of this Court in Smt.Kaushliya Devi supra while dealing with the identical fact situation where Director of Land & Building Tax, like in the present case, had instructed the assessing authority to re-frame the assessment order by recourse to Section 15-B of the Act relying on Supreme Court in Calcutta Discount Co.Ltd. Vs. Income-tax Officer : AIR 1961 SC 372 has held that the power exercisable under section 15-B of the Act by the Assessing Authority is a statutory power. He alone could have exercised that power. While exercising that power, he cannot abdicate his responsibility in favour of anyone. There is no provision in the Act empowering the Director LBT to issue such a direction as contained in his letter. He had no jurisdiction to issue such directions. This Court in those facts quashed the show cause notice issued as per instructions of Director LBT. 7) In the circumstances therefore, present writ petition deserves to be allowed and is hereby allowed. The impugned show cause notices dated 11/5/2000, Ann.5 & 6 are quashed and set-aside. Costs made easy. SBCWP NO.4780/2000. 9 A copy of this order be endorsed to the Chief Secretary, Government of Rajasthan, Secretariat, Jaipur to apprise him of the fact situation especially regarding number of appeals filed against the assessment-orders of land and building tax which have now been transferred to Additional District Magistrate and are not being heard for last several years thus, causing great inconvenience to the litigants forcing them to approach this Court. He should ensure that appeals are timely heard and disposed of. (MOHAMMAD RAFIQ), J. anil