Vivekananda School vs Zila Panchayat

B.S. Verma, J.

(Misc. Application No. 8506 of 2010)

By means of Miscellaneous Application, the Respondents seek permission to file the counter affidavit.

The counter affidavit filed on behalf of the Respondents is taken on record.

Heard learned Counsel for the parties and perused the record.

By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 7-5-2010 and recovery notice dated 31-3-2010 (contained as Annexure Nos. 13 and 15 to the writ petition), issued by the Respondents.

The grievance of the Petitioner is that the Apex Court in Civil Appeal No. 6657 of 2008, Vivekanand School Through Headmaster v. President of Zila Panchayat and Ors. whereby the Petitioner-school had assailed the order dated 22-2-2007 passed by a Division Bench of this Court in WPMB No. 1055 of 2003, has set aside the impugned order of the High Court and the Respondent authorities were directed to compute the taxable income and then to decide as to whether any tax is leviable. The Petitioner has annexed a copy of the judgment and order passed by the Apex Court as Annexure-4 to the petition. The Apex Court in paragraph Nos. 12, 13 and 14 has held as under:

In the circumstances, we set aside the impugned order of the High Court and direct the authorities to compute the taxable income and then decide as to whether any tax is leviable.

Another aspect which has been submitted by learned Counsel for the Appellant is that even if it is conceded for the sake of arguments that while computing the surplus i.e. income over expenditure donations can be taken into account, yet, the tax payable cannot exceed three naya paisa on a rupee on the total taxable income. The relevance of this question can only arise after the authorities decide as to whether there is any taxable income or not.

The appeal is allowed to the aforesaid extent. No costs.

Learned Counsel for the Petitioner has contended that instead of complying with the order passed by the Apex Court, the impugned order dated 7-5-2010 has been passed and recovery notice dated 31-3-2010 was issued against the Petitioner without considering the directions of the Apex Court, referred to above. On this count alone, the impugned order is liable to be quashed.

On the other hand, learned Counsel for the Respondents has submitted that the Petitioner has statutory remedy to file an appeal before the Prescribed Authority to assail the order and notice impugned in the present writ petition. The writ petition is not maintainable.

The learned Counsel appearing for the Petitioner in reply submitted that alternate remedy is not an absolute bar particularly when the order impugned itself is not an order in the eye of law, therefore, the writ petition is fully maintainable in the instant case.

I have pondered over the matter and have perused the impugned order dated 7-5-2010.

The Apex Court while deciding the Civil Appeal of the Petitioner had given specific directions in paragraph No. 12 and 13 of the judgment, referred to above, therefore, it was imperative upon the Respondents to have complied with the order dated 14-11-2008 passed by the Apex Court in letter and spirit, but the Respondents lost sight of the specific direction given by the Apex Court. In the impugned order there is a reference of the order of the Hon''ble Supreme Court but the taxable income has not been worked out and mentioned against the tax assessed with its details and only the tax assessed for particular years has been indicated. The authority concerned has not even made any observation in the assessment order whether or not the Petitioner is liable to pay the tax as observed in paragraph No. 13 of the judgment by the Apex Court.

In the above facts and circumstances, I am of the view that the assessment order dated 7-5-2010 is a cryptic order. The item wise details of taxable income of the Petitioner for each year under assessment are not shown in the assessment order and the same has not been passed as directed by the Hon''ble Supreme Court. The writ petition is therefore liable to be allowed.

The impugned order dated 7-5-2010 as well as impugned recovery notice (Annexure 13 and 15 to the petition) are set aside. The Executive Officer, Zila Panchayat, Dehradun is directed to pass fresh assessment orders as per directions contained in the Apex Court judgment dated 14-11-2008 by a reasoned and speaking order, within a period of eight weeks from the date of production of a certified copy of this order, after giving opportunity of hearing to the Petitioner.

The writ petition is accordingly allowed.