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Devi Prasad Vs. Municipal Board - Court Judgment

LegalCrystal Citation
Subject Civil; Municipal Tax
CourtAllahabad
Decided On
Reported inAIR1949All741
AppellantDevi Prasad
RespondentMunicipal Board
Excerpt:
- - in construing the section it is pertinent, in their lordships' opinion, to ascertain whether the act contains machinery which enables an assessee effectively to raise in the courts the question whether a particular provision of the income-tax act bearing on the assessment made is or is not ultra vires. 90. the costs in this court and in the lower court shall be in accordance with success and failure......rs. l,000 that was being claimed by the defendant.5. as regards the first point, the decision in district board of farrukhabad through the sony. administrator, .district board, farrukhabad v. prag dutt and ors. a.i.r. (35) 19i8 all. 382 f.b. almost concludes it. it is true that that case arose under the u.p. district boards act, but the provisions of the district boards act are very similar to the provisions of the u.p. municipalities act. section 131, district boards act provides:(1) no objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this act or in the u.p. local bates act, 1914.(2) the order of the appellate authority confirming, setting.....
Judgment:

Malik, C.J.

1. This is a plaintiff's appeal and, as the parties had agreed that the case should be heard without preparation of a paper book, it has been listed out of turn.

2. The plaintiff filed a suit in the Court of the learned Civil Judge of Parrukhabad for an injunction to restrain the defendant Board from attaching certain properties belonging to him for realisation of Rs. 1,000 which had been levied as a circumstance and property tax under Section 128, Sub-section (1), Clause (ix), U.P. Municipalities Act (II [2] of 1916). The plaintiff's case was that he does not reside or carry on business within the limits of the Kanauj Municipality and the Municipal Board had, therefore, no right to assess him to this tax. The plaintiff further alleged -that the assessment beyond Rs. 50 was illegal and void. In defence, the Municipal Board asserted that the plaintiff did carry on business within the municipal limits and was liable, therefore, to pay the tax. The Board, further, alleged that the suit was barred by Rs. 164, 818 and 321, Municipalities Act. The Board claimed that they were entitled to charge the whole amount assessed, i.e., Rs. 1,000 in accordance with the details given in the notice of assessment and the claim could not be restricted to Rs. 50 only. Certain other pleas were also taken, but those pleas have not been urged before us and we need not, therefore, discuss them in this judgment. The trial Court held in favour of the Board that the plaintiff carried on business within the limits of the Kanauj Municipality and the Municipal Board was, therefore, entitled to assess him to circumstance and property tax. This finding has not been challenged by learned Counsel for the plaintiff appellant.

3. The lower appellate (?) Court was, however, of the opinion that the Professions Tax Limitation Act (XX [20] of 1941) was not applicable and the Board was entitled to claim the whole of the amount of Rs. 1,000 from the plaintiff. The lower Court was also of the opinion that the civil Court had no jurisdiction to go into the question whether the Municipal Board was entitled to charge the sum of Rs. 1,000 as circumstance and property tax or its claim should have been limited only to the sum of Rs. 50. On these findings, the lower Court dismissed the plaintiff's suit.

4. Only two points arise for decision by this Court and the learned Counsel for the parties have not, urged any other point: firstly, whether the civil Court had jurisdiction to entertain the suit, and, secondly, whether the plaintiff was liable to pay' only Rs. 50 or the whole sum of Rs. l,000 that was being claimed by the defendant.

5. As regards the first point, the decision in District Board of Farrukhabad through The Sony. Administrator, .District Board, Farrukhabad v. Prag Dutt and Ors. A.I.R. (35) 19i8 ALL. 382 F.B. almost concludes it. It is true that that case arose under the U.P. District Boards Act, but the provisions of the District Boards Act are very similar to the provisions of the U.P. Municipalities Act. Section 131, District Boards Act provides:

(1) No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act or in the U.P. Local Bates Act, 1914.

(2) The order of the appellate authority confirming, setting aside or modifying an order in respect of valuation or assessment or liability to assessment or taxation shall be final: provided that it shall be lawful for the appellate authority, upon application or on his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

Section 164, U.P. Municipalities Act provides:

(1) No objection shall be taken to a valuation or assessment, nor shall the liability of a person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this Act.

(2) The order of the appellate authority confirming, setting aside or modifying an order in respect of valuation or assessment or liability to assessment or taxation shall be final: provided that it shall be lawful for the appellate authority, upon application or his own motion, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

On the language of the two sections, it is not possible to differentiate between a case under the District Boards Act and a case under the Municipalities Act and we are, therefore, bound by the decision of the Full Bench that if the tax imposed was illegal and beyond the jurisdiction of the Municipal Board, the civil Court could grant the relief asked for and prevent realisation of money which was not really due under the law. Learned Counsel has, however, urged that, in view of the decision of the Privy Council in The Raleigh Investment Co., Ltd, v. The Governor-General in Council A.I.R. (34) 1947 P.C. 78 which was not cited before the Full Bench, the decision of the Full Bench does not lay down correct law. In that case their Lordships of the Judicial Committee held that the plea, that certain sections of the Income tax were ultra vires the Indian Legislature and the assessment was therefore wrong, could be raised and considered in accordance with the provisions contained in the Income-tax Act, and to grant the right to file a separate suit would be against the scheme of the Act itself and, as a matter of fact, against the provisions of Section 67, Income tax Act. The Privy Council decision is binding on this Court and if the decision were applicable to the provisions of the U.P. Municipalities Act or the U.P. District Boards Act we would be bound to follow the same, but we find that there is a difference between the schemes of these Acts and the scheme of the Income-tax, Act. Their Lordships have attached some importance to the fact that under the Income- tax Act an assessee can bring forward all his objections to the assessment before the Courts. There is a provision for a reference to the High Court and if the income-tax authorities refuse to make a reference, the High Court has a right to call for a reference. There is the further right of taking the matter further up to the Federal Court or to the Privy Council. Under the Municipalities Act and the District Boards Act the assessment is made by some subordinate officer of the Board and the appeal lies not to a Court but to the District Magistrate whose decision is final. It is only in cases where the District Magistrate has any' doubts on any point of law raised before him that he may refer the point to the High Court for decision. But the assessee has no right to bring the matter for consideration before any Court. In giving their decision, mentioned above, their Lordships were alive to this distinction and observed:

In construing the section it is pertinent, in their Lordships' opinion, to ascertain whether the Act contains machinery which enables an assessee effectively to raise in the Courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires.... The absence of such machinery would greatly assist the appellant on the question of construction and, indeed it may be added that, if there were no such machinery and if the section affected to preclude the High Court in its ordinary civil jurisdiction from considering a point of ultra vires, there would be a serious question whether the opening part of the section so far as it debarred the question of ultra vires being debated, fell within the competence of the Legislature.

That case was from Calcutta and therefore their Lordships have mentioned the original civil jurisdiction of the High Court, but the observations would be equally applicable to a case in these provinces where the ordinary civil jurisdiction is vested in the Subordinate Civil Courts. To hold otherwise would lead to this result that the question of validity of a tax imposed by a Municipal Board or a District Board would be finally decided by the District Magistrate without the assessee having any chance of coming to a Court of law for a decision on a point of law. The Legislature, when it enacted Act XX [20] of 1941, did not lay down any special procedure for its enforcement. In the absence of anything contained in the Act it should be the duty of the Civil Courts to see that the provisions of the Act are complied with. We are, therefore, of the opinion that the decision of their Lordships of the Judicial Committee is distinguishable and does not apply to this case and we are bound by the decision of the Full Bench.

6. The only other point that has been raised is whether the Municipal Board was entitled to claim Rs. 1,000 as tax or the claim should have been limited only to a sum of Rs. 50. Details of the circumstance and property tax, as contained in the assessment order of the Municipal Board are as follows:

Haisiyat Makan (house property) ... Rs. 600 Kirana (grocery) ... ... Rs. 600Zamindari ... ... ... Rs. 400Itar (perfumery) ... ... Rs. 23,400----------------Rs. 25,000 ----------------Tax ... Rs. 1,000

7. Section 128, U.P. Municipalities Act provides the various heads under which taxes may be imposed:

(1) (ii) a tax on trades and callings carried on within the municipal limits and deriving special advantages from, or imposing special burdens on, Municipal services;

(iii) a tax on trades, callings and vocations including all employments remunerated by salary or fees;

(ix) a tax on inhabitants assessed according to their circumstances and property.

Sub-section (2) provides that taxes under Clauses (iii) and (ix) of subs: (1) shall not be levied at the same time. We have already said that the tax is levied under Clause (ix), Sub-section (1) as a tax on inhabitants assessed according to their circumstances and property.

8. Act XX [20] of 1941 on which the plaintiff appellant has relied for his case that the tax shall not exceed Rs. 50 provides in Section 2 as follows:

Notwithstanding the provisions of any law for the time being in force, any taxes payable in respect of any one person to a Province, or to any one Municipality, district Board, local Board or other local authority in any Province, by way of tax on professions, trades, callings or employments, shall from and after the commencement of this Act cease to be levied to the extent to which such taxes exceed fifty rupees per annum.

9. The question for decision is whether the tax levied as a circumstance and property tax includes a tax on professions, trades, callings or employments and, if it does, whether we are entitled to separate it under the various heads under which it is divisible or we must take it as one unit and' not consider the various component parts of which it is made. The Full Bench dealing with a ' similar question under the District Boards Act in District Board of Farrukhabad through The Hony, Administrator District Board, Farrukhabad v. Prag Datt and Ors : AIR1948All382 . was of the opinion that the Court was not bound to consider merely the name under which the Board purported to impose the tax but was entitled to consider the various items which had been taken into consideration in imposing the tax. This point also is, therefore, covered by the decision of the Full Bench.

10. The only question that remains for consideration is whether the tax on circumstances and property imposed on the plaintiff includes any item which can be called a tax on trade; it is obviously not a tax', on professions, callings, and employments. The fact that Clause (ix) of Sub-section (1) can include in it and overlap Clause (iii) is evident from the provisions of subs. (2) of Section 128, U.P. Municipalities Act which forbids the imposition of taxes under both these heads at the same time. It is a matter of some interest that to find out the amount on which the tax on perfumery business was to be levied, the Municipal Board made use of the assessment order of the income-tax Officer. Learned Counsel for the respondent has suggested the difference between an income-tax, a tax on trade and a licensing fee. It is easy to understand what an income tax is; it is also easy to understand what a licensing fee is; but what is a tax on trade is a little difficult to understand as it at times tends to overlap one or the other. We are, however, not called upon in this case to consider whether the tax on perfumery business was income-tax and it is not suggested that it was a licensing fee. All that we need consider is whether we are bound to hold that it is possible to dissect the various heads under Which the circumstance and property tax has been levied. It is not denied that one of the heads of charge can be called a tax on trade. The only argument that the learned Counsel for the respondent has, however, advanced in support of the case of the Board is that it is not possible for us to separate the various heads under which this tax has been imposed and we must take it as a whole. But if we are entitled to consider the various heads of charge then he is not able to give us any reason why the tax on the sum of Rs. 23,400 income from perfumery is not a tax on trade and also the tax on Rs. 600 income from the grocery business.

11. We are, therefore, of the opinion that the Municipal Board was not entitled to charge more than Rs. 50 as tax under these two heads- perfumery and grocery. The tax imposed under first and the third heads-house property and zamindari-does not fall within the Professions Tax Limitation Act and must stand.

12. We, therefore, allow this appeal in part. The plaintiff is liable to pay only Rs. 40 in addition to Rs. 50 on account of grocery and perfumery business in place of Rs. 1000 demanded by the Board. In case the amount is not paid, the Municipal Board is entitled to proceed against the plaintiff's property for realisation of the sum of Rs. 90. The costs in this Court and in the lower Court shall be in accordance with success and failure. If the Municipal Board has realised the whole amount of Rs. 1,000 the balance of Rs. 910 shall be refunded to the plaintiff within three months from this date. If the amount is not refunded within this time, the plaintiff is entitled to proceed under Section 144, Civil P.C.


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