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TMI Blog2024 (8) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... vice. In view thereof and since the issue involved was narrow, i.e., interpretation of provisions of the Maharashtra Municipal Corporation Act, 1949 (the Act) and the Maharashtra Municipal Corporation (Local Body Tax) Rules (the Rules) the court felt the matter can be disposed without giving any further time to, respondent to file reply. 2. Petitioner is impugning an order dated 22nd February 2024 to the extent where it says under Section 406 (6) (i) (ii) of the Act no appeal shall be entertained unless the amount of the disputed tax claimed plus interest and penalty has been deposited by appellant with the Commissioner. Admittedly, disputed tax is not defined under the Act. 3. The short issue which arises for our consideration is the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this question, it is relevant to analyse the scheme of levy of LBT. Section 127 of the Act deals with taxes to be imposed and Section 127 (2) (aaa) provides for levy of LBT on the entry of the goods into the limits of the city for consumption, use or sale therein, in lieu of octroi or cess, if so directed by the State Government by notification in the official gazette. Sub-section (3) provides that the tax shall be levied in accordance with the provisions of the Act and the Rules. Pursuant to the said provision, the levy of LBT is regulated by Rules. 6. The scheme of levy of LBT makes a distinction between levy of tax and interest and penalty. Rule 5 of the said rules provides for liability to pay LBT in certain cases and various sub-rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as "Corporation dues") ........ Rule 48 which provides for imposition of penalty and interest in certain cases also, under Sub Rule (3) (a) provides "If a dealer or a person does not pay the LBT within the time ...... then he shall, ...... be liable to pay by way of simple interest in addition to the amount of local body tax, a sum equal to .........". Even in Sub Rule (4) of Rule 48 it says "........in addition to any local body tax payable ....... a sum by way of penalty equal to the amount of local body tax due .......... and in the case of second or ........ a sum by way of penalty or not exceeding two times amount of local body tax due ........". 8. The said Rules also prescribes various Forms for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have a bearing on the issue under consideration : - (a) Chennai Network Infrastructure Ltd. Vs. Kalyan Dombivli Municipal Corporation & Ors. 2017 (3) Mh.L.J. 874; and (b) Reliance Communications Ltd. & Ors. Vs. Thane Municipal Corporation & Ors. 2019 (1) Mh.L.J. 71; and (c) C. G. International P. Ltd. Vs. State of Maharashtra 2010 (2) Mh.L.J. 693. Therefore, the petition was listed again on 22nd August 2024 and the counsel were called upon to address the issues. 11. Petitioner tendered a written note in which it was submitted the aforesaid three decisions were not applicable to the fact of this case but on the contrary decision in the case of C.G. International P. Ltd. (supra) supports petitioner's case. Counsel for responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are unauthorisedly erected and both are compulsory exactions. The Court observed that the statute meant to tax both properties (legal as well as illegal) and, therefore, amount of penalty imposed under Section 267-A although described as penalty is to be treated as "tax." Therefore, the Court came to a conclusion that an appellant has to pay penalty amount for entertaining the appeal. Secondly, the Co-ordinate Bench also drew support from Section 406 (2) of the Act which provided that no appeal shall be entertained in the case of an appeal against any tax including interest and penalty imposed in respect of which provisions exists under the Act for a complaint to be made to the Commissioner against the demand. The Court further obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in case of Reliance Communications Ltd. (supra) follows Chennai Network Infrastructure Ltd. which we have already observed is not applicable to the facts of the present case. 16. We are in agreement with petitioner that decision of learned single Judge in the case of C.G. International P. Ltd. (supra) support its submissions. The issue before the court was whether to challenge levy of "cess", interest and penalty is also to be deposited as pre-condition for entertaining the appeal. The learned single Judge after analysing the scheme of levy of "cess" and appeal provisions held that the Bombay Provincial Municipal Corporation Act recognises distinction between tax, interest and penalty and since what is required to be deposited is "disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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