B.N. Kirpal, J.
(1) In this and the connected petitions the question which arises for consideration is whether an appeal can be filed under Section 169 of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the said Act) against the levy of terminal tax.
(2) The Petitioner had brought into Delhi Palm Oil. The Terminal Tax was charged at the rate of Rs. 7.00 per. quintal instead of Rs. 2-33 per quintal as claimed by the petitioner. The petitioner filed an appeal under Section 169 before the Additional District Judge, Delhi challenging the said levy at
(3) Chapter Viii of the Municipal Corporation Act refers to levy of taxes. Section 113 contains the power of the Corporation to levy the taxes mentioned therein. Terminal Tax is not one of the taxes which can be levied by the Corporation under Section 113. The levy and collection of terminal tax is provided by Section 178 to 183. Section 178(1) which is the charging section for levy of terminal tax reads as under :
'S. 178(1) : On and from the date of the establishment of the Corporation under Section 3, there shall be levied on all goods carried by railway or road into the Union Territory of Delhi from any place outside thereof, a terminal tax at the rates specified in the Tenth Schedule. Section 179 which deals with the manner of the recovery of the terminal tax reads as under:
'S. 179(1) : The terminal tax levied under this Act shall be payable on demand and shall be collected by the Central Government in such manner and through such agency as may be specified ] by notifications in the Official Gazette.
(2): Such portion of the total proceeds of the terminal tax as the Central Government may determine shall be deducted to meet the costs of collection of the tax.
SECTION 180 inter alias provides that the proceeds of the terminal tax so collected, reduced by the cost of collection be paid by the Central Government to the Corporation if the parliament by appropriation made by law in this behalf so provides. The proceeds of course are to form part of the Consolidationed Fund of India till they are so appropriated. under section 183 power has been given to the Central Government to frame rules in relation to the levy, assessment and collection of terminal tax under the Act. Under the said provisions, the Central Government had made Delhi Terminal Tax Rules 1958. Rule 36 with which we are concerned in this petition reads as under :
RULE36 : Any person dissatisfied with the assessment of terminal tax payable on his goods made under any of these rules may require that the matter shall be referred to the Terminal Tax Officer for a decision. In such a case the Officer in charge of the barriers shall forward the goods to the head office under the escort of a peon, together with a brief report, of which he shall keep a copy in the memorandom book for the decision of the Terminal Tax Officer. If such person is dissatisfied with the decision of the Terminal Tax Officer he shall pay the terminal tax but may appeal against such decision to such superior officer as may be determined by the Agency, provided that he lodges his appeal within fifteen days from the date of such payment.
SECTION 169 of Act the contains a provision for filing of an appeal against assessment etc. The relevant portions of the said section read as under :
169(1)An appeal against the levy or assessment of any tax under this Act shall lie to the Court of district judge of Delhi.
(4)In every appeal, the costs shall be in the discretion of the Court.
(5)Costs awarded under this Section to the Corporation shall be recoverable by the Corporation as an arrear of tax due from the appellant.
(6)If the Corporation fails to pay the costs awarded to an appellant within ten days after the date of the order for payment thereof, the court may order the Commissioner to pay the amount to the appellant.
SECTION 170(a) provides the time limit within which the appeal should be filed and Sub-section (b) provides that the appeal shall not be heard if the amount in dispute has not been deposited in the office of the Corporation.
(4) Counsel appearing on behalf of the assessed has contended that the provisions of Section 169 are clear and unambiguous. It is stated that Section 169(1) gives a right of appeal which cannot be taken away by the framing of any rules by the Central Government under Section 183 of the Act. The main contention on behalf of the counsel for the Corporation and the Delhi Terminal Tax Agency is that Section 169 is not applicable in the case of Terminal Tax. The contention, in short, is that Section 169 is applicable to only those taxes which can be levied and collected by the Corporation for its own benefit. According to the learned counsel it is the Central Government which evies and collects or authorises the levy and collection of terminal tax.
IT is thereforee contended that Section 169 does not apply when ever there is any levy and collection of tax for any agency other than the corporation.
(5) In my opinion the provision of Section 169(1) clearly enable the filing of an appeal against the levy and assessment of terminal tax also. The provision of Section 169(1) when literally construed, clearly provide for the appeal being filed against the levy of any fax under this Act. The Section does not state that such levy should be made by the Corporation. The section does not limit the taxes to those which are enumerated in Section 113 of the Act, which are the taxes which can be levied by the Corporation, If the argument of the counsel for the Corporation & Delhi Terminal Tax Agency was to be accepted the effect of it would be that Section 169(1) would have to be re-written and the words 'by the Corporation' inserted therein after the words 'assessment of any tax'. In my opinion no justification far such insertions of the words.
(6) A provision which provides for the filing of an appeal should not be strictly construed. On a literal construction of Section 169(1) I find that there is no ambiguity in the said section atall. Whereas S. 113 of levy of taxes by the corporation the legislature to my mind deliberately widened the scope of Section 169(1) by not inserting the words levy of taxes by corporation'. ]The legislature was concious of the fact that the Act provided for the levy of taxes by the Corporation as well by the Central Government. Neverthe less in Section 169 no limiting words were inserted. I see no reason why in a taxing statute and in a provision which provides for an appeal against the levy and assessment any words should be inserted which would take away the right of appeal.
(7) The contention that by necessary implication Section 169(1) must be construed to mean as taxes which are imposed by the corporation is not correct. It is contended that Sub-sections (5) & (6) contemplate awarding of costs by and against the corporation. This may be so, but if Terminal Tax Agency is a party then all that it will mean is that provisions of Subsections (5) & (6) of Section 169 will not be invoked. The court would nevertheless have powers of awarding costs under Sub-section (4) of Section 169 In such an event costs will have to be paid to or recovered from Delhi Terminal Tax Agency. To my mind Sub-sections (5) & (6) of Section 169 can in no way alter the meaning of the clear and unambiguous term used in Section 169(1).
(8) It is true that Section 170(b) requires the deposit of disputed amount with the corporation before an appeal can be filed under Section 169(1). All that this means that when the' Central Government frames rules under Section 183 those rules will have to be in confirmity with Section 170 also. Merely because the disputed amount may have to be deposited with the corporation though the collecting agency may not necessarily be the corporation cannot mean that the light of appeal granted under Section 169(1) can be taken away. The conflict if any between the two provisions can easily be resolved by the Central Government either nominating the corporation as the collecting agency or making appropriate provision in this behalf in the rules which it is to frame under Section 183.
(9) It will be seen that Rule 36 is really not in conflict with Section 169. Rule 36, when analysed, talks of three stages. The first stage of the assessment, the second arises when any person dissatisfied with the assessment make a reference to the terminal tax officer and the third stage is of appeal against the order of terminal tax officer to any officer superior to him. It will be seen that against an assessment of terminal tax a person who is dissatisfied with it would have either of the two options to him. The first option is (a) to file an appeal under Section 169 of the Act or (b) to require the making of a reference of the matter to the Terminal Tax officer under rule 36 of Delhi Terminal Tax Rules and the passing of the consequent order by terminal tax officer and the appeal thereafter. If Rule 36 is read in this way there will be no conflict between the rule as well as Section 169 of the Act. It is, thereforee, not necessary to quash Rule 36 as has been contended by the petitioner in the case. It is also contended that S. 169 appears before the provision dealing levy and collection of terminal tax and thereforee Section 169 was not intended to apply to the imposition of terminal tax. There is no merit in this submission. The mere fact that the appeal provision is placed before the provisions dealing with the imposition of terminal tax cannot take away the right of filing of an appeal. If the language of Section 169 permits the filing of such an appeal. The placement of Section in the Act is of no consequence when the appeal provision provides for the filing of appeal against the levy of any tax under the Act. It will be seen that the language of the Section 169(1) is in pari materia with Section 179(1). Both the sections talk: of levy of tax under the Act.
(10) There can be no manner of doubt that terminal tax is levied under the Municipal Corporation Act, 1957. The mere fact that the tax is for the benefit of the Central Government will not take away make a levy outside the Act. If the levy is under the Act than the provisions of Section 169(1) would be clearly applicable to such a levy. I am thereforee clearly of the view assessment of terminal tax can be challenged under Section 169(1) of the Act.
(11) For the foregoing reasons the petition is allowed and the orders dated 20-11-1979 is quashed. Parties to bear their own costs.
(12) Ordinarily the case would have been remanded back to the Additional District Judge. In this case, however, the Addl. District Judge went into the question on merits and came to the conclusion that following the decision of this court in G.W.1229/79 M/s Ganesh Oil Traders v. Delhi Terminal Tax Agency 1980 D.L.T. 29 decided on 2-11-1979, that the terminal tax was payable only under item 16 Class I of the Xth Schedule namely @ Rs. 2-33 per quintal.
(13) Accordingly the respondents are directed to refund the amount of Rs. 1353.00 or such of the amount as it may be found entitled to, to the petitioner.
THErefund should be made within four weeks from today.