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FA/2847/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.2847 of 2011
To
FIRST
APPEAL No.2850 of 2011
With
CIVIL
APPLICATION No.10059 of 2011
In
FIRST APPEAL No.2847 of 2011
With
CIVIL
APPLICATION No.10060 of 2011
In
FIRST APPEAL No.2848 of 2011
With
CIVIL
APPLICATION No.10065 of 2011
In
FIRST APPEAL No.2849 of 2011
With
CIVIL
APPLICATION No.10066 of 2011
In
FIRST APPEAL No.2850 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
AHMEDABAD
MUNICIPAL CORPORATION - Appellant(s)
Versus
MANEKLAL
HARGOVANDAS - Defendant(s)
=====================================================
Appearance
:
MS JIRGA D JHAVERI for Appellant(s)
: 1,
MR PUNIT B JUNEJA for Defendant(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 07/10/2011
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
ADMIT.
As
in all these appeals common question arises for consideration, they
are being disposed of by this common order.
All
the appeals arise against the judgment and order passed by the
learned Small Causes Court, Ahmedabad in the concerned tax appeal
whereby the assessment of the bill as shop at the rate of Rs.6/-
from godown is set aside and it is directed that bill be issued of
the premises on the basis of usage as godown for the concerned year
at the rate of Rs.2/-.
We
have heard Ms.Jigra Jhaveri, learned counsel for the appellant
in all the matters and Mr.Juneja, learned counsel for the
respondents upon the advance copy.
It
appears that the learned Judge has recorded the reasons at Paragraph
No.4 of the impugned judgment, which reads as under:
“4. On
perusal of appeal, it transpires that for the year 2004-05 the
corporation has assessed rate at 2 for usage factor i.e. F3, but then
after the corporation has changed the same and in column of F3 in
stead of rate 2, the corporation has assessed the bill at the rate of
6. As a result of which the mun.tax of the appeal premises is very
high. However, there is no any satisfactory explanation or
clarification on part of the respondent corporation as to previously
the usage factor has been assessed as Rs.2/- whereas for the period
2008-09, it has been assessed at Rs.6/- then after for the period
2009-10, once again it has been reduced to Rs.2/- in place of Rs.6/-
and on the basis of this, the corporation has also issued bill to the
appellant for Rs.14,853/- in place of Rs.44,558/-. I have gone
through the circular of Ahmedabad Mun. Corporation, The Assessment
and Tax Collection Department bearing No.17/2009-10 dated 24.8.2009
and as per the circular, the respondent corporation has also reduced
the tax of the application premises for the year 2009-10, but for the
period 2008-09, the appellant has preferred this appeal and on
perusal of the documentary evidence, there is no satisfactory
clarification on the part of the respondent corporation as to how the
appellant has often and often uses more and more space of the
premises and though the application premises is used exclusively for
the purpose of the godown, how it can be assessed as shop from the
godown and how the retable factor F3 has been increased from 2 to 6
and here, in this appeal, the respondent corporation failed to prove
the facts of para.7 of the reply i.e. the amenities and new
construction and area of construction and, therefore, the act of the
corporation to assess the tax on the basis of F3 at Rs.6 in stead of
2 is illegal and not proper and, therefore, here in this appeal, the
appellant is entitled to get the benefit of factor F3 i.e. usage
factor at the rate of Rs.2/- per sq.mtr. in stead of 6 as the usage
type or rate of the appeal premises is godown and, therefore, it
should be assessed at the rate of Rs.2/- of the appellant deserves to
be allowed and hence, I pass the following order in the interest of
justice:-
-: ORDER
:-
The
present Appeal of the appellant is hereby allowed.
The
assessment made by the respondent corporation for the usage factor
i.e. F3 at Rs.6/- in place of 2 for the year 2008-09 is hereby set
aside.
Further
the respondent corporation is hereby directed to issue fresh bill
for tax on the basis of factor F3 i.e. usage factor at Rs.2/- in
place of 6 for the year 2008-09.
No order
as to cost of this appeal.”
The
aforesaid shows that there was no satisfactory clarification shown
before the learned Judge for making change of the use from godown to
shop by the Corporation or its officers. Even during course
of hearing, learned counsel for the appellant has not been able
to show any material to us on the basis of which it can be said that
the assessment of the premises from godown to shop or even
shop-cum-godown was on the basis of the report of any officers or
otherwise. Under these circumstances, we find that if the learned
Judge has gone by the evidence produced on record, it cannot be said
that there is any error committed by the learned Judge when the
Corporation failed to establish the actual use of the premises was
for shop and not godown. We may record that it is not a matter where
the assessment came to be made for the first time as shop or
shop-cum-godown but is a matter where initially the premises was
taxed as godown and thereafter the assessment is changed from godown
to shop or shop-cum-godown. Under the circumstances, it was required
for the Corporation to justify the change of assessment and in
absence of any justification the learned Judge was right in allowing
the appeals and issuing directions for continuing with the old
assessment on the basis of usage of the premises for godown.
Under
the circumstances, the appeals are meritless and dismissed.
In
view of the order passed in the first appeals, civil applications
would not survive and shall stand disposed of accordingly.
Registry
to place a copy of this order in connected matters.
[JAYANT
PATEL,J]
[
R.M.CHHAYA, J]
***
Bhavesh*
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