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Mohanlal Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 824 of 1984
Judge
Reported in1985(1)WLN186
AppellantMohanlal
RespondentState of Rajasthan
DispositionPetition allowed
Excerpt:
.....the provision of rule 8 is mandatory. it cannot be denied that in the present case order in the prescribed form was not passed in the presence of the petitioner on 3-6-76.;(b) rajasthan land & buildings tax act, 1964 - section 16--limitation from date of order when order is made in presence of parties--limitation from date of knowledge if order passed in absence of parties--held, appeal is within time when limitation starts from date of knowledge.;it appears that the same date has been put in the order in the prescribed form as it was there in the order sheet, although the order in the prescribed form might have been passed later on as they are differently recorded. but proceeding with the assumption that the order in the prescribed form under section 10 was signed on 3-6-76, such..........barred by time. according to the appellate authority the date of order is 3-6-1976 and from that date appeal has not been filed within 30 days. on merits also the appellate authority decided the appeal and found that the appeal has no substance. the petitioner thus preferred a revision petition before the board of revenue and the board of revenue by its order dated 13-1-83 dismissed the revision solely on the ground that the appeal preferred by the petitioner was time barred and so was rightly dismissed by the appellate authority.2. the question that arises for consideration in the present writ petition is as to what should be taken to be the date of the order under section 16 of the act? for proper appreciation and adjudication of the controversy involved in the present writ petition.....
Judgment:

M.C. Jain, J.

1. This writ petition involves a question of interpretation of the provisions contained in Sections 10, 12 and 16 of the Rajasthan Lands & Buildings Tax Act, 1964 (for short 'the Act') and Rules 8, and 11 of the Rajasthan Land & Building Tax Rules, 1966 (for short 'the Rules'). The Assistant Director, Lands and Buildings Tax, Jodhpur, respondent No. 4 assessed the property of the petitioner Mohanlal and his brother Kanhaiya Lal for the assessment years, 1973-74, 1974-75, 1975-76 and 1976-77. In the order sheet order was passed on 3-6-1976. The order sheet bears the signatures of the petitioner Mohanlal. The order was subsequently drawn up in the prescribed form and that order was not served on the petitioner but it said to have been served on one Vishnudutt alleged to be the son of the petitioner as per the report of the Process Server which has been denied by the petitioner. The petitioner has stated that Vishnudutt is not his son. According to the petitioner a stranger other than Vishnudutt delivered the copy of the order of assessment in the prescribed form to the petitioner on 5-7-1976. Having received the assessment order in the prescribed form the petitioner preferred an appeal before the Additional Collector, Jodhpur, Appellate Authority under the Act. The appeal was dismissed inter-alia on the ground that the appeal is barred by time. According to the Appellate Authority the date of order is 3-6-1976 and from that date appeal has not been filed within 30 days. On merits also the Appellate Authority decided the appeal and found that the appeal has no substance. The petitioner thus preferred a revision petition before the Board of Revenue and the Board of Revenue by its order dated 13-1-83 dismissed the revision solely on the ground that the appeal preferred by the petitioner was time barred and so was rightly dismissed by the Appellate Authority.

2. The question that arises for consideration in the present writ petition is as to what should be taken to be the date of the order under Section 16 of the Act? For proper appreciation and adjudication of the controversy involved in the present writ petition it will be profitable to reproduce the relevant provisions of the Act and the Rules:

10. Assessment of market value by Assessing Authority. (1) Where a return is furnished under, Section 7, the Assessing Authority shall examine the returns and make such enquiry as he deems fit. If the Assessing Authority is satisfied that the particulars mentioned therein are correct and complete he shall, by order in writing, assess the market value of the land or building and determine the amount of tax payable in respect of such land or building.

(2)(a) Where on examination of the return and after the enquiry the Assessing Authority is not satisfied that the particulars mentioned therein are correct and complete he shall serve a notice on the owner either to attend in person or through an authorised agent on a date and place to be specified in the notice or to produce or cause to be produced on that date any evidence on which the owner may rely in support of his return.

(b) The assessing authority after bearing such evidence as the owner may produce in pursuance of the notice under Clause (a) and such other evidence as the assessing authority may require on any specified points shall, by order in writing, assess the market value of the land or building and determine the amount of tax payable in respect thereof.

(c) Where the owner has failed to attend or to produce evidence in pursuance of the notice under Clause (a) the Assessing Authority shall, after such enquiry as it deems proper, by order in writing, assess the market value of the land or building and determine the amount of tax payable in respect thereof.

Section 12. Copy of the order to be sent to the Assessee Director and Prescribed Officer:A copy of the order passed under Section 10 or 11 shall be served on the owner in such manner as may be prescribed and a copy of the said order shall also be sent to the Director and the prescribed officer.

Section 16. Appeals-(1) Any person aggrieved by an order under Sections (10, 11, 13, 15 or 15B) may at any time before the expiry of 30 days from the date of the order, prefer an appeal to the Collector of the District, where the (land or building) in respect of which the order was passed, is situate, or to such other authority as the State Government, may be notification in the Official Gazette, appoint in this behalf:

Provided 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.

Rule 8. Form of assessment under Section 10:The order of assessment under Section 10 shall be made in form LBT 5.

Rule 11. Manner of service of order under Section 10 or 11:Any order passed under Section 10 or 11 shall be served on the owner of the land and building in the following manner, namely:

(a) in the case of any company, society or association of individuals, whether incorporated or not served-

(i) on the Secretary or any Director or other principal officer of the company, society or association of individuals as the case may be, or

(ii) by leaving it or sending it by registered post acknowledgement due, addressed to the company, society or association of individuals as the case may be, at the registered office or if there is no registered office then at the place where the company society or association of individuals as the case may be, carries on business;

(d) in the case of an individual person be served,

(i) by delivering or tendering the order to the person concerned or his counsel or authorised agent; or

(ii) by delivering or tendering the order to some adult member of the family; or

(iii) by sending the order to the person concerned by registered post acknowledgement due; or

(iv) if none of the aforesaid modes of service is practicable, by affixing the order in some conspicuous part of the last known place of residence or business of the person concerned.

A perusal of the above provisions would reveal the scheme as to how the order is to be passed by the Assessing Authority under Section 10. The Assessing Authority is required to pass an order in writing as mentioned in Sub-clause (b) of sub Section (2) of Section 10. The order passed under Sub-clause (b) of Sub-section (2) of Section 10 is required to be served on the owner in the manner as prescribed under the Rules. Thus Section 12 contemplates service of the copy of the order on the assessee. Section 16 provides for appeals and any person aggrieved by an order under Section 10 has got a right to prefer an appeal and the appeal can be preferred by such person at any time before the expiry of 30 days from the 'date of the order'. Sections 10(2)(b), 12 and 16 make a mention of the word 'order'. How and in what manner the order is to be recorded is provided in the Rules. Rule 8 provided that the order of assessment under Section 10 shall be made in the form LBT 6. If Section 10 is read with Rule 8, it would be abundantly clear that the order which has to be passed under Section 10 is required to be passed in from LBT 6. An order which is not so recorded would not be considered to be an order under Section 10 and it is such an order which is required to be served under Section 12 in the manner as provided in Rule 11. In the case of an individual, such an order in the prescribed form is required to be served by delivering or tendering the order to the person concerned or his counsel or authorised agent or by delivering or tendering the order to some adult member of the family or by sending it to the person concerned by registered post acknowledgment due. If the service is not practicable, the service can be effected by affixing the order in some conspicuous part of the last known place of residence or business of the person concerned. What is material is the manner in which the order is to be passed under Section 10. The manner is prescribed under the Rules. An order which is not so passed cannot be considered to be an order under Section 10. The provision of Rule 8 is mandatory. It cannot be denied that in the present case order in the prescribed form was not passed in the presence of the petitioner on 3-6-76. Undoubtedly an order was passed but not as contemplated by law. The order recorded in the order sheet is not what is contemplated under the scheme of the Act and the Rules. The limitation would run only from the date when an order is passed in the prescribed form. Till the order is passed in the prescribed form even if any other order is made, then the period of limitation would not commence from the date of passing of such an order as it is not an order in accordance with law. In the present case admittedly the order in the prescribed form was not passed on 3-6-76 and so the period of limitation would |not run from the date 3-6-76. The limitation Would run from the date when the order in the prescribed form is actually signed. Even if it is taken that the order in the prescribed form in this particular case was signed on 3-61976 but that was not signed in the presence of the petitioner, although the order in the prescribed form appears the date 3-6-76. It appears that the same date has been put in the order in the prescribed form as it was there in the order sheet, although the order in the prescribed form might have been passed later on as they are differently recorded. But proceeding with the assumption that the order in the prescribed form under Section 10 was signed on 3-6-76, such an order was not passed in the presence of the petitioner and so the petitioner had no knowledge of the date of the order passed in the prescribed form and so the date of the order under Section 16 of the Act for the purpose of this case would be the date of knowledge of the order and the date of knowledge of the order is 5-7-76 and from that date admittedly the appeal was within time. The Authorities below in my opinion have not considered the question in the light of the scheme of the relevant provisions of the Act and the Rules. In case the order is passed in the prescribed form in the presence of the assessee, then the date of order would be that date as the order would be an order under Section 10 of the Act. If such is the position, then the period of limitation would commence from the date of passing of an order as that order fulfills the requirements of law and so period of limitation will also commence from that date but it is not so in the present case. In the above view of the matter in my opinion the Board of Revenue was in error in holding the appeal of the petitioner as time barred and so the order of the Board of Revenue deserves to be quashed.

3. Accordingly the writ petition is allowed. The order of the Board of Revenue dated 13-4-1983 and the Board of Revenue is directed to hear the revision petition of the petitioner on merits and dispose of the same in accordance with law. Parties to bear their own costs.


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