Assessing Officer, Narayangonj Range and others Vs. Burmah Eastern Ltd

Assessing Officer, Narayangonj Range and others

Vs.

Burmah Eastern Ltd

Supreme Court 

Appellate Division

(Civil)

Present:

Fazle Munim J

Shahabuddin Ahmed J

Chowdhury A. T. M. Masud J

Assessing Officer, Narayangonj Range and others…………………….Appellants

Vs.

Burmah Eastern Ltd. ……………………………………………Respondents

Judgment

Jan. 22, 1981.

Lawyers Involved

Abdus Sobhan Additional Attorney General, Matiur Rahman, Assistant Attorney General with him, instructed by B. Hossain, Advocate on-Record (absent)—For the Appellants.

Altaf Hossain, Advocate, Jaynal Abedin, Advocate, Supreme Court with him, instructed by Abdur Rab-II, Advocate-on-Record—For the Respondent.

Civil Appeal No. 100 of 1980.

(From the judgment and order dated September 1. 1977 passed by the High Court Division in Writ Petition No 222 of 1973).

Judgment:

                 Chowdhury A.T.M. Masud J.-This appeal by special leave arises out of a judgment of a Bench of the High Court Division in Writ Petition No. 222 of 1973 dated 1st September, 1977.

Leave was granted for examining the question as to whether the provisions of the Urban Immovable Property Tax Rules, 1957 and also whether the said Rules could be applied retrospectively, once the assessment had already been done.

2. The Respondent is a company incor­porated in Bangladesh, under the Companies Act, 1913, and in May, 1965 it took over the business and market assets of the Burmah Shell Oil Storage and Distributing Company of Pakistan Limited in the then East Pakis­tan, hereinafter referred to as ”Burmah Shell”. Prior to such taking over, Burmah Shell used to file returns and pay Urban Immovable Pro­perty Tax. By an assessment order dated 78.6.64, the Agricultural Income Tax Officer, revised the valuation of the holding at God-nail  Depot  belonging to Burmah  Shell, for the year 1961-62 and re-fixed the valuation of the holding at Tk, 54.822/-. Prior to this assessment order the valuation of the holding was Tk. 16.225/-. On appeal preferred by Burmah Shell the Assistant Commissioner of Agricultural Income Tax reduced the  valua­tion of the holding from Tk. 54,822/ to Tk 31.920/-.

3. Since the taking over of the business of Burmah Shell, the Respondent has been paying the Urban Immovable Property Tax on the basis of the said decision of the Assis­tant Commissioner. By a Memo dated 20th May, 1970,Taxation Officer, Narayanganj Range, intimated the Respondent that the Oil Reservoir Tank of the respondent escaped assessment from the years 1957-58 to 1962-63, which was required to be assessed, under Rule 10 (a) of the Urban Immovable Property Tax Rules, 1957 (hereinafter referred to as the said Rules) and the respondent was asked to’ submit return for the omitted portion of the holding—with dimension, date of construction and measurement of capacity. The respondent accordingly submitted the requisite particulars and subsequently being asked for, respondent furnished more particulars. Thereafter Taxa­tion Officer, Narayanganj Range, revised the valuation of the holding at the God-nail Depot of the respondent, under rule 10 and made fresh assessments, for 16 years, that is. 1957-58 to 1972-73 on the ground that valuation of the Oil Storage Tanks was not included in the valua­tion of the holding and the same escaped assessment. The respondent then received the Impugned Notice being process No. 3823 dated 18.5.73, issued by the Assessing Officer, Narayanan] Range, demanding payment of Tk 80.165/- as Urban Immovable Property Tax for the years 1957-58 to 1972-73. Respon­dent sought for clarification, and was in­formed that the re-assessment had been made according to Urban Immovable Property Tax Act and Rules and that the tax must be paid by 18th August, 1973, otherwise pe­nalty would be imposed. The Taxation Officer, Narayanganj by another letter dated 8th’ August, 1973 asked respondent to show cause why penalty should not be imposed for non-payment of Government dues.

4.  Having failed  to get any  relief from the appellants,  respondent filed Writ  Petition No. 222 of 1973, before the High Court Division, challenging the notice being pro­cess No. 3823 dated 18.5.1971, issued by the Assessing Officer, Narayanganj Range, Main contentions of the respondent   in the aforesaid   Writ Petition are:

(a) that valuation of the holding has been wrongly revised under rule 10(a) and fresh assessment made:

(b) that in the absence of any specific provision making rule 30 retrospective, the Assessing Officer acted without jurisdiction in reopening the assessment for the years 1957-58 to 1962-63 under Rule 10.

(c) that Municipal Taxation Rules do not apply to the holding of the respondent, be­cause it is outside the Municipal area and that even if the Municipal Rules apply to the holding, the Assessing Officer did not cor­rectly apply the said Rules in this case.

It was also respondent’s contention that the Oil Reservoir Tank cannot be called a holding, so as to bring it within the operation of the Urban Immovable Property Tax Act, 1957 inasmuch as the said Tanks are im­movable temporary   structures.

5. Appellant No.1 entered appearance in the said Writ Petition and filed an affidavit in opposition contending, inter alia, that the assessment of Urban Immovable Property Tax for the year 1957-58 to 1962-63 was made without taking into account the valua­tion of the Oil Storage Tanks, which formed major portion of construction of the Oil Depot, The omission was detected at the time of assessment of tax for the years 1963-64 to 1969-70. The assessment for the said years, was made on the basis of detailed statements is respect of the Oil  Storage Tanks, submitted  by the respondent and taking into account the valuation of the said Oil   Storage-Tanks  and accordingly the tax was demanded and   duly paid by the res­pondent.

6. It  was also contended that the app­ellant rightly reassessed and levied tax under rule 10 of the said Rules, which  empower the appellant to do so and that the assess­ment proceeding for the years 1957-58 to 1962-63 were reopened under rule 10(a) of the Urban Immovable Property Tax Rules 1957, as” the valuation of the Storage Tanks totally escaped assessment and assessment for the years from 1963-64 to 1969-70 were reopened on 16th November, 1972 was the valuation of the Oil Storage Tanks for the years 1963-64 to1969-70 were under assessed.

7. It was further contended by appellant No. 1 that in the absence of any appro­priate Rules in the Urban Immoveable Pro­perty Tax Rules providing for any basis for assessing   the valuation of the respondent’s holding at Godnail Depot, the appellants re­sorted to Municipal Taxation Rules.

8. The appellant also challenged the main­tainability of the Writ Petition contending that it was not maintainable inasmuch as Urban Immovable Property Tax Rules, 1957, provides for appeal before the Deputy Direc­tor of Taxation, against the order of assess­ment made by the Taxation Officer and with­out filing any appeal the respondent was not competent to file the Writ Petition.

9. The High Court Division after hear­ing the parties made the Rule absolute and the impugned notice was declared to have been passed illegally and without any lawful authority. The High Court Division, however, held that the Oil Storage Tanks form part of the “holding” as defined under section 2(1) of the Urban Immovable Property Tax Act, 1957.

10. Mr. Abdus Sobhan, the learned Additional Attorney General appearing on behalf of the Appellants, submitted that the intention of the legislature in giving re­trospective effect to the provision of rule 10 is clear from the language used in the rule, which states, inter alia, that the Assessing Officer may amend or alter the valuation and tax payable for a holding, when in his opinion, it has been incorrectly valued or assessed. He submitted that under the said Rule, Assessing Officer has been given the power to amend or alter the valuation and tax payable for a holding after the last assessment made. He further submitted that the High Court Division erred in law in holding that there was no scope for reo­pening the assessment under rule 10 on the ground of under assessment and that said power can be exercised only while making the assessment of tax payable in a holding that is, only in cases where assessment is yet to be completed and tax is payable.

Mr. Altaf Hossain, the learned advocate appearing on behalf of the respondents submitted that rule 10 did not authorise any revision of the valuation of any holding with retrospective effect. He further submitted that Urban Immovable Property Tax Act and the rules, being fiscal legislations, should be given strict interpretation and in the absence of any express intention by the legislature, rules of the said Rules cannot be taken to hive any retrospective operation. It was submitted on behalf of the respondent that the High Court Division correctly interpreted the provision of aforesaid Rule 10 of the Urban Immoveable Property Tax Rules, 957.

11. It is a well-settled rule of interpretation that ordinarily a statutory provision is pros­pective in its operation and retrospective effect cannot be given, unless such effect is given to it in the statute itself, either ex­pressly or by necessary implication.

In Maxwell’s Interpretation of Statutes, 11th Edition, the principle has been stated as follows:

“Every Statute, it has been said, which takes away or impairs vested rights, acquired under existing laws or created a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or consideration already past must be presumed, out of respect to the legislatures, to be intended not to have a  retrospective  operation.”

Craies on Statute Law; 7th Edition at page 389 has stated the principle of cons­truction as follows:—

“Before giving such a construction to an Act or parliament one would require that it should either appear very clearly in the terms of the Act or arise by a necessary and distinct interpretation, and perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute, so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided, without doing violence to the language of the enact­ment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”

At page 370 the principle has been further elaborated as follows:—

“Unless there is some declared inten­tion of the legislature clear and unequi­vocal or unless there are some circums­tances rendering it inevitable that we should take the other view; we are to presume that an act is prospective not retrospective.”

Rule 10 of the Urban Immovable Property Tax Rules. 1957 reads as follows:—

“10. Amendment and alteration—The Assessing Officer may amend or alter the valuation   and tax payable for a holding.

(a) by entering any property which in his opinion ought’ to have been entered or which has become liable to tax after the last assessment made.

(b) by altering the valuation of or assess­ment on any holding which in his opinion has been incorrectly valued or assessed,

(c) by reassessing any holding, the valua­tion of which has been increased by additions or alteration of the holding.

Provided that no assessment or altera­tion shall be made unless the owner has been given a reasonable opportunity of being heard”.

In view of the settled principle of interpre­tation, as stated above, we find it difficult to accept the contention of the learned Addi­tional Attorney General to the effect that rule 10 can be given retrospective effect .

12. The learned Judges of the High Court Division have rightly held that the assessing officer under rule 10 has been given the power to amend or alter the valuation, while making assessment of the tax payable in  a  holding, in other words, only in cases where assessments are yet to be completed and tax is payable.

13. On a perusal of the relevant rule, we think that if the intention of the legislature was to give the assessing officer wide and un­restricted power to reopen a closed assessment, the language would have been different, more so this being a fiscal legislation, there would have been an express intention by the legisla­ture to reopen a closed assessment. In this connection it may be observed that in other similar fiscal legislation, like the Income Tax Act, Sales Tax Act, Gift Tax Act, Business Profit Tax Act, a time limit has been fixed for reopening a closed assessment but in rule 10 of the Urban Immovable Property Tax Rules no such time limit has been given. The learn­ed-Additional Attorney General has submit­ted that all the demands under the said Act are recoverable under the Public Demands Recovery Act, for which a period of limitation has been prescribed and in that view of the matter, it cannot be said that under rule 10 an unrestricted wide power has been given to the Assessing Officer. We find no substance to this contention because the question of application of the Public Demand Recovery Act would arise only after a valid assessment has been made and demand notice issued but so far the question of reopening a closed ass­essment is concerned, no time limit has been prescribed.

14. It was contended by the learned Additional Attorney General that the learned Judges of the High Court Division, erred in law in finding that the  procedure adopted in determining the annual  value of the Oil Storage Tanks was  unauthorised, having no legal sanction behind it. He submitted that though the holding is outside the Municipal area, the Municipal Taxation Rule was followed by the Assessing Officer for the purpose of determining the value of the holding to question as a basis  as there was no  other better basis than  the basis provided in the   Municipal Taxation  Rules, 1960 as amended sofa”. Rule 4 of the said Municipal Taxation Rules has provided the procedure for levying of tax in Non-Mu­nicipal areas and admitted the holding in question is situated in Non-Municipal area, thus attracting the provision of said Rule 4. But apparently the Assessing Officer did not follow the said procedure. The learned Addi­tional Attorney General has failed to point out any legal sanction  behind  the procedure adopted by the Assessing Officer in the ins­tant case  We therefore find no substance in his aforesaid contention.

15. We have heard the learned Addi­tional Attorney General on the question of maintainability of this appeal, although leave was not granted on that point. The main­tainability of the Writ Petition was challeng­ed before the High Court Division, which rejected the appellant’s contention. It was submitted by the learned Additional Attor­ney General that rule 12 of the Urban Immovable Property Tax Rules provides First Appeal against the assessment orders passed by the Assessing Officer, before the Deputy Director of Taxation and a Second Appeal before the Director of Taxation against the order of the Deputy Director, and as such there being adequate remedies provided in the statute itself, the petitioner should not be allowed to invoke the extraordinary jurisdiction under Article 102 of the Cons­titution, without preferring appeal as provi­ded in the Statute.

As we have found the impugned action without jurisdiction, the question of availing statutory alternative remedy does not arise. We are of opinion that the High Court Divi­sion has rightly held that the Writ Petition was maintainable.

For the aforesaid reasons this appeal is dismissed but without cost.

Ed.

Source: 1982, (AD)

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