TMI Blog2011 (9) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 3.1.1991, that it was not liable to pay the ZP cess and GP cess and that those cesses may be deleted from the demand. However by notice of demand dated (nil) July 1991, revised by notice dated 28.1.1994, the Collector, Chandrapur, reiterated the demand for surface rent as also the ZP and GP cesses for the years 1987 to 1992, on the following ground: The Government of Maharashtra vide its letter Industries Energy and Labour Department (IND) No.TQCR-2176/45691/1172/IND-9 Bombay dated 13.06.1978 and Director, Geology Mining, Govt.of Maharashtra, Nagpur vide letter No.STC/295/39/2007 dated 09.06.1989 have issued instructions regarding fixation of surface rent on the lease area used for mining purpose. As per these directives and Rule 27(1)(d) of Mineral Concession Rules, 1960, the lessee is required to pay the surface rent at such rate not exceeding the land revenue and the cesses assessable on the land. Since the mining operation is the use of land other than the Agriculture purpose, the rate of non-agricultural assessment, together with the cesses assessable on the land, are applicable for levying the surface rent. (emphasis supplied) 2. The appellant was aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and is extracted below : 27. Conditions - (1) Every mining lease shall be subject to the following conditions - xxxx xxxx (d) the lessee shall also pay, for the surface area used by him for the purposes of mining operations, surface rent and water rate at such rate, not exceeding the land revenue, and cesses assessable on the land, as may be specified by the State Government in the lease. (emphasis supplied)Clause 4 of Part V of the lease deed reads thus: The lessee/lessees shall pay rent and water rate to the State Government in respect of all parts of the surface of the said lands which shall from time to time be occupied or used by the lessee/lessees under the authority of those presents at the rate of Rs...and Rs...respectively per annum per hectare of the area so occupied or used and so in proportion for any area less than a hectare during the period from the commencement of such occupation or use until the area shall cease to be so occupied or used and shall as far as possible restore the surface land so used to us in original condition. Surface rent and water rate shall be paid as hereinbefore detailed in clause (2) provided that no such rent/water rate shall be paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seven hundred paise as may be determined by the concerned Divisional Commissioner after amendment of section 151(1) by Maharashtra Act 1 of 1993] (emphasis supplied)It is evident from the said provision of the Zilla Parishad Act that a 'lessee from the state government' is not liable to pay ZP cess under section 151 (1) of the Zilla Parishads. The ZP cess can be levied only in terms of and under the Zilla Parishads Act and cannot be levied by the state government, under the terms of a contract. Where a particular cess is leviable under an enactment, and the contract says that the lessee is liable to pay such cess leviable under that enactment, but the enactment exempted a specified class of persons (to which the lessee belongs) from paying the said cess, the state government cannot make the lessee liable to pay the said cess on the ground that under the contract entered under a different enactment, the lessee is liable to pay such cess. For example, if a Sales Tax Act exempts the sale of particular goods from tax, the seller of such goods cannot demand Sales Tax on the ground that the contract of sale provides that the buyer is liable to pay all taxes leviable under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if it is leviable under Zilla Parishads Act. Clause V(4) provides 9that the mining lessee shall pay cesses assessable on the land (ZP and GP cesses) subject to the revision of rates prescribed by Government from time to time. This refers to revision by the State Government in exercise of the power under section 151(1) of Zilla Parishads Act and not in exercise of any power under the lease deed, as a lessor. This also shows that ZP cess as revised under the Zilla Parishads Act is payable only if it is payable under the Zilla Parishads Act and not otherwise. Re: Question No.(ii) 11. Section 127 of the Bombay Gram Panchayats Act, 1958 deals with levy and collection of cess. The said section is extracted below : (1) The State Government shall levy cess at the rate of one hundred paise, on every rupee of every sum payable to the state government as ordinary land revenue in the area within the jurisdiction of a panchayat and thereupon, the state government shall (in addition to any cess leviable under the Maharshtra Zilla Parishads and Panchayat Samitis Act, 1961) levy and collect such cess in such area. (2) to (4) deleted by Maharashtra Act 10 of 1992. (5) For the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of the land revenue. Therefore only a person who is liable to pay land revenue will be liable to pay GP cess. Section 64 of the Land Revenue Code provides that all lands are liable to payment of land revenue to the state government except such as may be wholly exempted under the provisions of the special contract with the state government. Clause VII(1) of the lease deed dated 12.2.1980 between State Government and the appellant provides such exemption as it says the lessee shall not be liable to pay land revenue. We extract below clause (1) of Part VII of the lease deed for ready reference: Lessee to pay rents and royalties, taxes, etc. 1. The lessee/lessees shall pay the rent, water rate and royalties reserved by this lease at such times and in the manner provided in the PARTS V and VI of these presents and shall also pay and discharge all taxes, rates assessment and impositions whatsoever being in the nature of public demands which shall from time to time be charged, assessed or imposed by the authority of the Central and State Governments upon or in respect of the premises and works of the lessee/lessees in common with other premises and works of the like nature e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
