Govind Mathur, J. - (1.) A Division Bench of this Court in the case of East India Hotels Ltd. and Anr. v. The State of Rajasthan and Ors., AIR 2001 Raj 288, while declaring Section 13(1)(b) and Section 15(b) of the Rajasthan Land & Building Tax Act, 1964 (hereinafter referred to as "the Act of 1964") ultravires to the Constitution of India, held as under: IV. In our view, when the tax under the Act of 1964 is upon the land or building; or, both, separately as units and when the property in question has already been subjected to tax the question of any further tax liability under the Act cannot arise merely on account of the transfer of such property. Under the scheme of things contemplated in the Act, in this regard, the change in ownership is wholly inconsequential inasmuch as the tax is not on the person owning the land or building; but, on the land or building or both separately as units. The provision authorising the levy of tax under the Act on the transferee of the property on account of change of ownership is beyond the legislative competence of the State Legislature. That being the position, Section 13(1)(b) which reads, "is acquired, by transfer or otherwise", and Explanation that, "acquired by transfer or otherwise" used in Clause (b) of this sub -section shall not include acquisition by inheritance", are ultra vires the Constitution of India. V. Section 15 of the Act provides for amendment of assessment order inter alia by reason of any change having taken place in the ownership of land and building. However, this provision is not a charging Section; and, only enables amendment of assessment on the happening of certain events. In the absence of any charging section empowering levy of tax on account of change of ownership it is not competent for the Assessing Authority to subject any property to tax merely on the basis of change in its ownership. It might be that Section 13 is a charging section creating liability to tax inter alia in cases where land or building is acquired by way of transfer. However, this charging section is applicable only where the property acquired by way of transfer is not already liable to pay tax. Section 3 which is the main charging section does not authorise fresh levy on transferee of the property, more particularly on the property which has already suffered tax, Clause (c) of Section 3(1B) only subjects the assessee to pay tax on rebuilt or enlarged building on which onetime tax had been paid earlier to such rebuilding or enlargement. The provision does not speak of liability on account of transfer of property. Section 15 of the Act of 1964 will have to be read subject to Section 13 and Section 3(1B) of the Act and that would only mean that amendment order under Section 15 can, if at all, in case of transfer, be passed only in cases covered under Section 13 or Clause (c) of Section 3(1B) in so far as the same is necessitated due to change in ownership. That being the position, Section 13(1)(b), which reads "is acquired, by transfer or otherwise" along with Explanation "acquired by transfer or otherwise, used in Clause (b) of this sub -section shall not include acquisition by inheritance", and Section 15(b), which reads "any change having taken place in the ownership of the land or building; except by way of inheritance" are beyond the legislative competence of the State Legislature.
(2.) THE petitioners purchased plot No. 113 -B/2 (a part of plot No.113 -B), PWD Colony, Jodhpur through a sale deed that was executed by Shri Rajeev Mehta and Smt. Ranjana Kiran on 29.06.1997. Prior to sale of land Shri Rajeev Mehta satisfied demand in a tune of Rs. 32,000/ - assessed by designated assessing authority against one time tax as per provisions of the Act of 1964. Against same immovable property a demand was made from the petitioners under the Act of 1964 that was satisfied by payment of a sum of Rs. 2,56,074/ - as one time tax and a certificate dt. 29.07.1999 in this regard was issued by the competent authority. On declaration of Section 13(1)(b) and Section 15(b) of the Act of 1964 ultra vires to the Constitution by this Court in the case of East India Hotels Ltd. (supra) the petitioners claimed for refund of one time tax paid by them. Despite several representations submitted by the petitioners and recommendations made by the Assistant Director, Land and Building Tax Department, Jodhpur, no action was taken, hence this petition for writ is preferred to claim refund of the tax said to be paid in excess.
(3.) WITH strong support of the provisions of Section 72 of the Indian Contract Act, 1872, the contention of counsel for the petitioners is that one time tax was demanded from the petitioners and paid by them under a mistake of law, thus, same deserves to be refunded. To substantiate the claim, aid is also sought on basis of law laid down by Hon'ble Supreme Court in the case of the Sales Tax Officer, Banaras and Ors. v. : [1959]1SCR1350 holding therein that "there is no conflict between the provisions of Section 72 on the one hand and Sections 21 and 22 of the Indian Contract Act on the other and the true principle enunciated is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same.;