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2017 (4) TMI 1152 - BOMBAY HIGH COURTFinal demand notice concerning property tax in respect of the Petitioners' cellular sites situate within the municipal limits of the Respondent Corporation - penalty levied under Section 267A - Held that:- Subsection (2) inter alia provides that no such appeal shall be entertained in the case of an appeal against any tax including interest and penalty imposed in respect of which provision exists under the Act for a complaint to be made to the Commissioner against the demand, unless such complaint has previously been made and disposed of. That clearly gives away the intention of the legislature to treat penalty as tax for the purposes of Section 406 and make any fixation or charge of penalty appealable. Mr.Tulzapurkar contends that this provision merely deals with those cases where a provision exists under the Act for a complaint to be made to the Commissioner against the demand of interest or penalty charged. That is not the point. The provision is clearly to provide for the cases suggested by Mr.Tulzapurkar. But the corollary is that interest or penalty charged under the Act, by definition, comes within the expression 'tax' used in subsection (1) of Section 406. Appeals merely lie against the matters provides for in subsection (1), which include 'tax'. Subsection (2) carves out certain cases from out of the larger class of appealable matters, where special conditions for filing of appeals are provided. There is no reason to specially provide for cases of appeals from interest or penalty charged (where there is a provision of complaint to the Commissioner), if such cases were not to fall, in the first place, in the category of appealable cases. For all these reasons, it is obvious that any interest or penalty charged is included in the expression 'tax' used in Section 406(1) and is appealable as such. Once we come to the conclusion that penalty charged under Section 267A is appealable, we see no reason not to relegate the aggrieved assessee to the statutory appellate forum. We have already discussed this aspect in the order above whilst dealing with conservancy tax under Section 131 of the Act. All contentions of the Petitioner on merits of the levy, some of which have been noted above, are open to it, to be urged before the appellate forum. We express no opinion on them.
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