AI Structured Summary
Not yet generated for this judgment
Judgment
Ravi Malimath, J.—The petitioner seeks for a writ of certiorari to quash the endorsement dated 07.01.2001 and to direct the respondents to refund a sum of Rs. 43,470/- along with interest at 12% per annum and by a subsequent amendment an additional prayer to issue a writ of mandamus to the effect of declaring the bye-laws of the B.B.M.P. as void and unsustainable. The primary plea of the petitioner is that the hoarding erected for the purpose of propagating the business of the petitioner themselves cannot form a subject matter of tax in terms of Section- 134 of the Municipal Corporation Act. Therefore, the same requires to be quashed. That inspite of bringing it to the notice of the corporation regarding the facts involved herein and the subsequent judgment of the learned Single Judge, the corporation has reinstated its stand. Hence, the present petition.
The learned counsel for the corporation-defends the stand.
On hearing the learned counsels, I'' am of the view that the issue sought to be raised in the petition primarily is one of applicability of Section- 134 of the Act. In an identical situation, the learned Single Judge by an order dated 30.06.2009, in W.P. No. 9039/2007 and connected matters, allowed the writ petition and held that the petitioner therein are exempt from payment of advertisement tax under the third proviso to Section- 134 of the Act, in respect of the advertisement boards displayed by their agents/distributors/retailers.
Aggrieved by the same, the corporation filed writ appeals wherein the Division Bench by its order 30.11.2011 in WA. No. 2404/2010 and connected matters set-aside, the order of the learned Single Judge and quashed all the demand notices. The corporation was directed to reconsider the claim for exemption by holding proper enquiry with due notice to the shop owners, etc. the operative portion of the reads as under:
In that view of the matter, the order of the learned Single Judge is set-aside. Annexure-F and consequential orders pursuant to Annexure-F are also set-aside. The appellant has to reconsider the claim for exemption by holding proper enquiry with due notice to the shop owners and also due opportunity to the contesting respondents.
Writ appeals are accordingly allowed.
Under these circumstances, I'' am of the considered view that the same issue cannot be allowed to be reagitated once again. The issue having attained finality by the order of the appellate court, the same would stand applicable to the petitioners also. Consequently, all the demand notices made by the corporation claiming tax from the petitioner for his hoardings requires to be set-aside.
So far as the additional prayer seeking to declare that the bye-laws mentioned therein as void and unenforceable, I'' am of the considered view that the same would not be necessary to be considered in this petition. Since the plea of the petitioner would stand considered by the respondent in terms of the judgment of the Division Bench, the consideration of the additional prayer for declaring the provisions of law as void and unsustainable need not be gone into in this petition. The issue is kept open.
Consequently, the petition is allowed. Annexure-M issued by the respondent-corporation and all other demands made by it in pursuance to the hoarding erected by the petitioner for their own business is concerned, is set-aside. The order of the Division Bench dated 30.11.2011 passed in WA. No. 2404/2010 and connected matters shall stand applicable to the petitioner herein also. The respondent-corporation to hold a proper enquiry after due notice to consider the claim for exemption and thereafter pass appropriate order.
If any payment has been made by the petitioner, namely the payment of the tax as referred to herein above, it is needless to state that the corporation should refund the said amount to the petitioner, on they submitting the proof to the corporation for the same. The writ petition is disposed off accordingly.