1. In this case the 3rd Presidency Magistrate has convicted the petitioner under Section 125(1) of the Madras City Municipal Act, 1904, for failure to pay profession tax for the 1st half-year of the financial year 1909-10. It is common ground that the petitioner's name appeared in the classification drawn up by the President of the Corporation under S. 121, and it was shown that a notice had been served on him under S. 125, but he alleged that he had not exercised any profession within the city for sixty days during the current half-year, and the Presidency Magistrate convicted him, merely observing that he had no witnesses; but this appears to have reference to the failure of the petitioner to produce witnesses as to the service of notice, and the contention raised in behalf of the Corporation was that the fact of notice to pay the tax for the half year having been served on the petitioner was conclusive of his liability to' pay in view of his failure to apply for revision within fifteen days of the notice. This part of Act III of 1904 re-enacts, without much modification, the provisions of the previous Act I of 1884, and it will be of assistance to compare the provisions of the two Acts and to see what was the state of the law under the old Act and if it has been altered by the present Act. Under S. 101 of the old Act as under S. 118 of the present Act, the President is required to keep lists of persons liable to pay this among other taxes. Sections 103 and 120 respectively make persons exercising a profession or holding an appointment in the city liable to pay the tax. S. 104 of the Act of 1884 empowers the President to determine in which of the scheduled classes 'any such person,' that is to say, any person exercising a profession or holding an office in the city, is to be placed, and to revise such classification from time to time, and also empowers any person dissatisfied with such classification to appeal therefrom. Section 121 of the present Act is to the same effect, but any person' is substituted for 'any such person.' Section 105 of the old, corresponding to Section 126 of the new Act, provides that the tax for each half-year shall become payable after the profession has been exercised or the appointment held for sixty days in the halt-year. Section 124 of the present Act, which is new, provides that no person shall be liable to the tax in respect of any half-year in which he has exercised a profession or held an appointment for less than sixty days within the city. Section 106 which corresponds to S. 125--the section now in question--is as follows:--'If in a half-year any person exercises any such *** profession *** or holds any such *** appointment for sixty days without paying the sum due in respect of such half-year, the President may, so soon ashe is informed thereof, cause to be served on such person a notice that if within fifteen days from the date of such service, such payment be not made such person will be prosecuted for such default. If such person omits to make such payment together with the costs of service, the President may, at the expiration of the said fifteen days, cause the person so in default to be prosecuted before a Magistrate.' S. 125 of the present Act is virtually to the same effect except that it omits the words 'so soon as he is informed thereof.' Then S. 107 of the old Act provides that: 'If the Magistrate finds that such person is liable and that such default has been made and that such notice has been duly served, such person shall be liable to a fine not exceeding twice the amount of the tax and shall also pay the tax, the costs of service of notice, and such other costs as may be provided by the Magistrate.' In accordance with the scheme of the new Act, the penalty for this and other breaches is provided for by S. 420, read with Schedule XVI, which imposes a penalty not exceeding twice the amount of the tax.
2. Sections 190 to 196 of the old Act correspond generally to Ss. 172 to 177 of the new Act and deal with complaints against taxes or classification providing for the finality of the decisions given on such complaints and of the original demand in the absence of such complaint. So far as the profession tax is concerned the language of Section 172 of the new Act appears to me to be, if any thing, larger than of Section 190 of the old Act, because Section 190, so far as it relates to profession tax, dealt only with complaints or applications for revision preferred under Section 104, which deals with revision of classification, whereas Section 172 of the new Act deals generally with ' all complaints against, and all applications for revision of classification in respect of, any tax or toll leviable under Part IV,' I have inserted the commas, but the grammatical construction appears to me equally plain without them. Then as regards the sections as to finality, the provision in Section 196 against suits to recover back taxes levied under the Act, provided the provisions of the Act had been substantially complied with, is omitted in Section 177. Further in Section 191 which corresponds to Section 208 of t he old Act and saves irregularities due to defect of form, the words 'provided the directions of the Act be in substance and effect complied with' are omitted. In the face of these last-mentioned alterations, the decisions under the District Municipalities Act that persons not liable to the tax can sue to recover it back--The Municipal Council, Cocanada v. The Standard Life Assurance Company I.L.R. (1900) M. 205 and the cases therein cited--have become clearly inapplicable under the Act as they proceed upon language which is not used in the present Act. A question as to the extent of the right of complaint given under the old Act was raised in Davis v. President of the Madras Municipality I.L.R. (1890) M. 140 where it was held against the contention put forward by the Municipality that a partner in a firm carrying on business in Madras who had been wrongly classified as personally liable as distinct from his firm was entitled to apply for revision under Section 190 read with Section 104 , and that his right to apply for revision was not limited to complaints as to the class in which he had been placed. Then if he had a right of complaint and failed to exercise it, the provisions of Section 190 would appear to preclude him from questioning the original demand. The question whether a person who had not applied for a revision could insist on the question of his liability being gone into in a prosecution under Section 107 did not arise and Shephard J. did not deal with it, but Muthusawmi Aiyar, J., at the bottom of p. 144, observed that ' Section 107 makes non-liability to be taxed available also as a matter of defence in case of prosecution.' It is, however, not apparent how, if the provisions as to finality in Section 196 applied to proceedings under Section 107, the defence of non-liability was open; and if they did not apply, why the prosecution should be relieved of proving liability as part of its case. That the provisions of Section 196 did apply seems to follow from the decision of the learned Judges themselves, for if a person who had a notice served on him under Section 106 had a right of complaint under Section 190 on the ground of non-liability to pay, is there any reason for refusing, in proceedings under Section 107 to give effect to the provisions of Section 196 that when no complaint has been made the assessment, revision or demand of the tax shall be final, that is to say, not open to question? I have not been able to find any satisfactory reason for so holding, and it appears to me that in a prosecution under Section 107 of the old Act in order to procure a conviction it was enough to prove classification, notice under Section 106, failure to complain within 15 days of such notice, the time limited by Section 191(a) and failure to pay pursuant to the notice. To say that the provisions of Section 196 as to finality apply to proceedings to recover the tax by distraint or suit, but not to proceedings under Section 107, which is perhaps the most ordinary method of enforcing payment, appears to me to be restricting unduly the provisions of Section 196, nor do I I see any sound reason for the distinction.
3. Now if failure to complain of classification within the time limited under Ss. 104 and 190 was conclusive under the old Act, I can find no reason in any of the changes in the recent Act which have been set out above why failure to complain under Ss. 121 and 172 of the present Act should not have the same effect. On the contrary the language of Section 172 of the new Act, as already pointed out is, if any thing, wider than that of Section 190 of the old Act, so that the scope of Section 177 is enlarged in this way also, as well as by the omission of the second part of Section 196 which suggested limitations on the finality conferred by that section. In my view the decision of the Magistrate was right and the petition must be dismissed.
Krishnaswami Aiyar, J.
4. The accused in this case has been convicted under Ss. 125 and 420 of Madras Act III of 1904. He was called upon to pay profession tax by notice under Section 125, and having failed to pay within the time limited by that section, he was prosecuted by the President of the Municipal Corporation and convicted by the 3rd Presidency Magistrate, Georgetown. The accused impugns the legality of the Magistrate's order on the ground that under Section 125 no offence could be committed unless he exercised a profession, art, trade or calling, and that there was no inquiry or determination by the Magistrate as to the exercise of a profession &c.;, &c.;, by the accused. The Magistrate's order simply says that the accused had no witnesses. It is, however, admitted before us that the absence of witnesses had reference only to the plea that the notice was not duly served, but not to the question whether the accused exercised the profession. Was the Magistrate right in declining to inquire into the plea of non-exercise of the profession The question thus raised is one of some difficulty, but I have come to the conclusion that he was right. Section 172 of Madras Act III of 1904 provides 'that all complaints against and all applications for revision of classification in respect of any tax or toll leviable under Part IV shall be heard and decided by the President and two Commissioners.' Section 175 provides an appeal against the order of the President and two Commissioners to Magistrates. Section 176 authorises a reference by the Magistrates to the High Court. Section 177 declares the finality of the decision of the respective authorities in the following terms :
The assessment, revision or demand of any tax or toll, when no complaint, application or objection is made as hereinbefore provided, and the adjudication of an appeal by the Magistrates shall be final.' It will be noticed that the declaration of finality is not merely with reference to the decision of Magistrates or of the President and Commissioners but, in case no complaint or objection is made with reference to the original assessment. Whatever question, therefore, can be raised by-way of complaint or application for revision under Section 172 must be finally set at rest by virtue of the last clause of Section 177 and cannot be availed of by way of defence to a distress under Section 180 or a suit under Clause (1) of Section 188 or a prosecution under Section 125 or the 2nd Clause of Section 188. We have then to determine what are the matters that can be dealt with under Section 172. The 1st clause of the section which I have above quoted is somewhat different from the 1st clause of Section 190 of the old Act I of 1884 which ran as follows :
All complaints against, or applications for, revision of any classification or tax preferred under Sections 104, 115, 181 and 188, and all complaints against, and objections to any valuation or measurement and assessment, preferred under Sections 130 and 131, and all complaints against any other tax or toll assessed or demanded by the Commissioners shall be heard and disposed of, etc.' Now it will be seen at a glance that the 1st clause of Section 172 of the present Act is more compendious. It will also be noticed that instead of specifying complaints or applications under particular sections of the Act, all complaints and applications relating to any tax or toll leviable under Part IV are stated to be within the cognizance of the President and two Commissioners. Although punctuation is not a safe guide in the interpretation of a legislative enactment (See Maxwell, pp. 61 and 62) we may note that Section 190 of the old Act was largely punctuated so as tap furnish a clue to the interpretation of that section. The Ist clause of Section 172, on the other hand, is not punctuated at all. The difficulty arises as to how it should be read. But I think the meaning is tolerably clear that all complaints against any tax or toll leviable under Part IV and all applications for revision of classification in respect of any such tax or toll are cognizable by the President and two Commissioners. It seems to me that the section ought not to be read so as to limit the complaints and the applications for revision to the question of classification. Even apart from the history of that section, namely, that it is in substance a reproduction of Section 190 of Act I of 1884, such an interpretation is inadmissible on the ground that there is no question of classification under the Act as regards tolls, or the tax on carts, or the tax on vehicles, dealt with in Part IV of the Act, and yet complaints in respect of them must certainly have been intended to fall within the scope of Section 172 as they certainly fell under the express language of Section 194 of the old Act. There are various taxes or tolls leviable under several sections in Part IV of the Act, such as Sections 120, 129, 145, 148, 150, 158, 164. It is Only in the case of certain of the taxes or tolls that revision is expressly provided. For example, Section 121 provides for revision in the case of the profession tax as regards classsifi-cation ; Section 139 provides for revision of valuation; Section 155 speaks of the vehicle tax being the subject of an appeal as hereinafter provided. There is no other provision as regards the right to complain against any tax or to apply for its revision. Yet it must be conceded that if the President declines to remove a person's name from the assessment book under Clause (c) of Section 136, it ought to be competent to him to apply to the President and Commissioners for the removal of his name on the ground that he is not the owner liable to the tax on the buildings. Again, if the President declines to remit the tax when a building has been vacant for 'thirty consecutive days or more ' in proportion to the number of days of vacancy (vide Section 142) the owner should not be refused the liberty of proving to the President and two Commissioners that the house was vacant for a sufficient number of days to entitle him to remission. If the President refuses to grant exemptions under Section 126, or Section 151, or Section 150, or Section 158, it cannot be supposed that complaints to the President and two Commissioners are excluded. Even the question of non-liability on account of the non-exercise of the profession for sixty days or more under Section 124 can be determined after notice under Section 125 by the President and two Commissioners under Section 174.
For Section 174, Clause (a) provides that within fifteen days after notice under Section 125 an application for revision may be made under Section 172. I conceive that by the mention of 'all complaints against any tax or toll leviable under Part IV' the competency of the aggrieved party to make a complaint against any tax or toll and to apply for revision of classification in respect of it is distinctly recognised. If I am right in this view, it follows that the provision as to finality in Section 177 must be given its full effect and no question can then be allowed to be raised by way of defence to a prosecution or to distress or to a civil suit. I am, therefore, inclined to hold-that as the petitioner did not complain against the assessment as provided by the Act, it has become final. If Section 172 was limited to the bare question of classification, as Clause 2 of Section 121 appears to be (cf. Wood v. Corporation of the Town of Calcutta (1881) L. R. 7 C. 322 the clause as to finality in Section 177 might be restricted to the question of classification. But upon the interpretation we placed on Section 172 it is impossible to hold that the defence of non-exercise of the profession is open to the petitioner in a prosecution before the Magistrate. Nor is there any hardship in the adoption of such a view. For the Act has provided in substitution the larger remedy of appeal to two Magistrates with the further advantage of a reference to the High Court. The observations of Mr. Justice Muthusawmi Aiyar in Davis v. President of the Madras Municipal Commission I.L.R. (1890) M. 140 that the defence of non-exercise of the profession is open to the accused in a prosecution under Section 107 of the old Act I of 1884 for non-payment of the profession tax, do not appear to be in accord with his general reasoning as regards the competency of the Magistrates in appeal from the President and two Commissioners to determine the question of liability to the profession tax as well as of the proper class under which a person is liable. The decision in Municipal Council, Cocanada v. The Standard Life Assurance Company I.L.R. (1900) M. 205 is based upon the language of Sections 101 and 262 of the District Municipalities Act IV of 1882, which differs materially from that of the corresponding provisions, of Act III of 1904. I think the conviction in this case is right and would, therefore, decline to interfere.