Case No: Civil Appeal No. 100 of 1980
Court: Appellate Division ,,
Advocate: Abdus Sobhan,Mr. Altaf Hussain,,
Citation: 34 DLR (AD) (1982) 29
Case Year: 1982
Appellant: Assessing Officer, Narayangonj Range
Respondent: Burmah Eastern Ltd.
Subject: Interpretation of Statute,
Delivery Date: 1981-1-22
Fazle Munim, J.
Shahabuddin Ahmed, J.
Chowdhury A. T. M. Masud, J.
Assessing Officer, Narayangonj Range and others
Burmah Eastern Ltd.
Jan. 22, 1981.
Interpretation of Statutes
It is a well established 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.
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).
1. 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:
Craies on Statute Law; 7th Edition at page 389 has stated the principle of construction as follows:—
At page 370 the principle has been further elaborated as follows:—
Rule 10 of the Urban Immovable Property Tax Rules. 1957 reads as follows:—
(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.