- (1.) The petitioner has challenged the distress warrant issued against the petitioner on the ground that the property situated at No. 52A, Shakespeare Sarani has since been transferred by it to one Smt. Jamuna Devi Karnani some times between 1969 and 1971 and, therefore, they are not liable for payment of tax. Mr. Mallick contends that the amount of tax sought to be recovered was for the period from the 2nd quarters 1976-77 till 4th quarters 1987-88. For the period till the coming into force of the Calcutta Municipal Corporation Act, 1980, the petitioner was liable, if at all, to pay tax with regard to occupier's share only and not beyond. Be that as it may, his other point was that no notice was, however, issued to the petitioner and the distress warrant was issued without any notice to him. In order to save execution of the distress warrant, the petitioner had issued 6 cheques in favour of the Calcutta Municipal Corporation representing an amount of Rs. 6 lakhs. These cheques have since bounced. According to Mr. Das Adhikari, it was on the ground that there was a stop-payment instruction by the petitioner. Mr. Mullick, on the other hand, submits that there was no fund. Mr. Mullick further contends that the petitioner cannot be liable for payment of tax. It is the owner, who is liable for the same and no recovery can be made from the petitioner since the petitioner had informed the Municipality about the transfer as back as in January 1970, which is at annexure 'D' to the petition. Subsequently, it was again communicated through a letter, which does not bear any date, alleged to have been sent under registered post-the acknowledgement due card showing the date as on June 6, 1983. In the said communication Smt. Jamuna Devi Karnanai was shown as transferee of the said property. A subsequent letter was issued on 13th December, 1976 where it was contended that the property was mutated in favour of Smt. Jamuna Devi Karnani and the copies of the order of mutation was annexed with the said letter. But annexure 'G' does not contain copy of any such enclosure. A subsequent letter was issued on 4th April, 1974 along with which it was claimed that the property was mutated in favour of Smt. Jamuna Devi Karnani, and the mutation forms signed by Smt. Jamuna Devi Karnani were forwarded. Howerver, the letter being annexure 'H' does not contain copies of these forms. Subsequently, another letter was issued in 1975 where also it was claimed that the property was mutated in favour of Smt. Jamuna Devi Karnani. Therefore, it is contended by Mr. Mullick that the Corporation could not have proceeded against the petitoner and ought to have proceeded against Smt. Jamuna Devi, the address of whom was disclosed by the petitioner in these letters.
(2.) Mr. Das Adhikari, learned counsel for the Corporation, on the other hand, produces the records of the Municipality and points out that the property which was originally numbered as 208/1B, Acharya Jagadish Chandra Bose Road was alleged to have been sold in part to one Gajendra Kumar Karnani, who had applied for separation and mutation. Accordingly, the said separation was affected and the said premises was separated as 52A and 52B Shakespeare Sarani respectively. Premises No. 52B, Shakespeare Sarani was mutated in favour of Gajendra Kumar Karnani and the tax was separated. Whereas in respect of 52A though the premises was separated and tax was apportioned, but the same continued to be in the name of Karnani Estates Pvt. Ltd., 3, Synagogue Street, Calcutta-700001. Thus even in 1989 the said situation continued as is appearing from the Municipal Assessment Book of the Assessment Department produced in Court.
(3.) In the affidavit-in opposition it was contended by the Corporation that though there was separation and mutation but there was no transfer. However in the supplementary affidavit it was explained and the said fact has been clarified as stated hereinbefore. Therefore the tax can be recovered so far as 52A is concerned from the petitioner. He relies on a decision in the case of Machinnon Machenzie and Co. Ltd. v. Calcutta Municipal Corporation, reported in AIR 1999 Calcutta 205 in support of his contention.;