Yahya Ali, J.
1. This is an appeal by the Public Prosecutor from the acquittal of the respondent, Chakka Kondappa, in C.C. No. 237 of 1946 in the Court of the Stationary Sub-Magistrate, Gooty. The respondent was prosecuted under Rule 33(2) of the Rules in Schedule IV attached to the Madras Local Boards Act for nonpayment of profession tax due by him and payable to the District Board, Anantapur in respect of the exercise of money-lending profession during the years 1944-45 and 1945-46. The total amount of tax which was demanded from him was Rs. 18-2-0 including a warant fee of two annas. In the charge sheet filed by the District Board President it was mentioned that the tax and the warrant fee due by the assessee could not be collected as he had refused to pay the tax when demanded by the Licence Inspector and also obstructed him in executing the warrant. The accused denied that he exercised the profession of money-lending during the periods in question within the limits of the District Board.
2. The Sub-Magistrate found on the facts and the evidence that it was not satisfactorily proved that he was exercising the money-lending profession as alleged by the prosecution and that the notices of demand were not served on him as required by law and that consequently he had no opportunity to prefer an appeal to the District Board, as is provided in the Local Boards Act. The prosecution, however, raised a legal contention at the time of the trial to the effect that since assessment had been made and within the time fixed for appeal, no appeal had been filed, the assessment became final under the provisions of the Local Boards Act and it was not open to the accused to let in any evidence on the question of his liability to the tax, that is to say, on the question as to whether notices were properly served on him or not and whether he exercised the money-lending profession during the periods in dispute. The Sub-Magistrate negatived this contention also, and in the end acquitted the accused holding that no tax was lawfully due by and leviable from the accused by the Anantapur District Board.
3. Before me the learned Public Prosecutor did not question the findings of fact of the Sub-Magistrate ; but he urged that on a proper scrutiny of the relevant provisions of the Local Boards Act it should be held that it was not open to the accused to raise the plea that he had not exercised the profession of money-lending in respect of which he has been assessed. Profession tax is leviable in a Local Board area under Section 93 of the Act, and Rule II-A in schedule IV requires that notice should be served in the prescribed manner and in the prescribed form on the person who is liable to be assessed for the half year in question. Under Rule 26 in the same schedule a right of appeal is provided, and then comes Rule 31 which is to this effect :
The assessment or demand of any tax, when no appeal is made as hereinbefore provided, and when such an appeal is made, the adjudication of the panchayat thereon, shall be final.
4. It is also necessary in this connection to refer to Section 228(1) of the Act which provides :
No assessment or demand, made, and no charge imposed, under the authority of this Act shall be impeached or affected by reason of any clerical error or by reason of any mistake...provided that the provisions of this Act have been, in substance and effect, complied with. And no proceedings under this Act shall merely for defect in form be quashed or set aside by any Court of justice.
Reliance is placed on behalf of the Crown on the expression ' final' occurring in Rule 31, and on the phrase in Section 228 which refers to the compliance in substance and effect with the provisions of the Act and the bar against any proceedings under the Act being interfered with by a Court of justice merely on the ground of an error or mistake. On the other hand, the respondent wholly relies upon the provisions of Section 228 for the purpose of contending that the bar arising under that section does not operate unless it is shown by the prosecution that there was substantial compliance with the provisions of the Act, for instance in the matter of service of notice and by way of proving that he had exercised a profession in respect of which he could be assessed to profession tax under the provisions of the Act. It is also argued by Mr. Jayaram with reference to Rule 31 that the finality referred to therein is only for the purpose of the Act, and where the legality of the assessment is questioned whether in a civil suit or in a criminal proceeding there will be no bar arising either under the rule or under Section 228.
5. This question has formed the subject matter of numerous decisions of this Court. I may start with referring to the leading case on the subject decided by Shephard and Boddam, JJ., reported in Municipal Council, Coconadav. Standard Life Assurance Co. : (1900)10MLJ401 . That was a case that arose under Section 262 of the District Municipalities Act corresponding to Section 228 of the Local Boards Act. There the question was whether when the petitioner company was not doing business within the Coconada Municipality, a suit to question the correctness of its assessment to profession tax was maintainable in a civil Court. The matter was put specifically by the learned Judges in these words at page 213:
The question really is whether when a company, which in respect of its particular business is not taxable under the Act or does not transact business within the Municipality, is nevertheless taxed, it can be said that' the provisions of the Act have been in substance and effect complied with.' The question whether there has been a substantial compliance with the Act is one of fact which has to be determined with reference to the particular circumstances of the case.
Upon this view it was held that there was no difference in principle between the exaction of a tax which has not been legally imposed and the exaction of a tax from a person who is not taxable under the Act. In the latter case no less than in the former there has been a substantial disregard of the provisions of the Act.
6. Before I deal with the further cases which have consistently followed this view, I may dispose of the solitary ruling cited on behalf of the Crown which, it was contended, took the opposite view. That was the case in Veeraraghavalu v. President, Corporation of Madras : (1910)20MLJ773 decided by Wallis, J., (as he then was) and Krishna-swami Aiyar, J. That case arose under Section 172 of the City Municipal Act of 1904. It is hardly necessary to set out the facts of that case in detail and it is clear from the judgment of both the learned Judges that the decision proceeded entirely upon the particular language of Section 172 of the Act of 1904 which was found to be radically different from the language of the corresponding section in the old City Municipal Act of 1884. Wallis, J., further observed:.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 the 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 view of these essential differences in the language of the relevant sections in the Act it was held that the decisions under the District Municipalities Act that persons not liable to the tax can sue to recover it back were clearly inapplicable under the City Municipal Act as they proceeded upon language which is not used in the latter Act. Consequently the decision in the Municipal Council, Coconada v. The Standard Life Assurance Co. : (1900)10MLJ401 and the decisions referred to in that case were not acted upon. Krishnaswami Aiyar, J., also made observations at page 137 to the same effect.
7. Continuing the trend of the decisions in the Municipal Council, Coconada v. The Standard Life Assurance Co. : (1900)10MLJ401 . I may refer to Balasuryaprasada v. The Taluk Board, Chicacole : AIR1931Mad822 , which was a decision under Section 228 of the Local Boards Act. In that case the learned Judg'- has collected all the decisions which were given after the Municipal Council, Coconada v. Standard Life Assurance Co : (1900)10MLJ401 , namely, Municipal Council, Mangalore v. Codial Bail Press (1903) 14 M.L.J. 410 : I.L.R. Mad. 547 (decided under the District Municipalities Act), Arunachalam Chettiar v. Namakkal Union Board (1927) 54 M.L.J. 603 (Local Boards Act) and Bombay Co., Ltd. v. Municipal Council, Dindigul : AIR1929Mad146 and Chairman, Municipal Council, Kumbakonam v. Rally Bros. (1930) 61 M.L.J. 748 (both under the District Municipalities Act). Balasuryaprasada v. The Taluk. Board, Chicacole : AIR1931Mad822 was also a case of a person who was alleged to have been exercising money-lending profession and as such assessed to profession tax. The legality of the assessment was impugned in a Civil Court and the plaintiff contended that he was not exercising that profession. The lower Courts did not examine the contention on its merits but dismissed the suit as barred by Sub-section (2) of Section 228 of the Local Boards Act. Madhavan Nair, J., after reviewing the decision in the Municipal Council, Coconada v. Standard Life Assurance Co. (1900) 10 M.L.J. 402 : I.L.R. Mad. 205 and the subsequent decisions mentioned above came to the conclusion that the complaint of the plaintiff being that he was not liable to be taxed under the Act, Section 228(2) was not a bar to the suit and that the lower Courts should have gone into the merits of the case and disposed of it in accordance with law. In one of the earlier cases referred to in that judgment the principle was laid down that where the Board has disregarded a provision of law and taxes a person who is not taxable at all, the jurisdiction of Courts is not ousted. Cases of fundamental departures from the meaning of the statute are excluded from the operation of the bar.
8. It is unnecessary to refer to the other cases which have dealt with the question of the jurisdiction of Civil Courts, and since this is a criminal case, I shall refer to the set of cases which have dealt with the right of an accused person in a prosecution of this kind to raise the question of his liability and the jurisdiction of the Criminal Court to examine that question on its merits. Smith in re : (1923)45MLJ731 was a decision given by Krishnan, J., sitting singly in a case that arose under the City Municipal Act. In that case dealing with the argument used by the Magistrate in support of the assessment, namely, that as the accused did not go to the Standing Committee and seek redress before them, it should be taken as settled that the accused is bound to pay the tax imposed upon him that it had become final under the law and that the Magistrate could not question its legality, the learned Judge while expressing disagreement with that view pointed out that there could be no kind of estoppel in a criminal case and said.
The prosecution must establish affirmatively to his satisfaction that the tax was payable and that there was a default in payment of the tax. The fact that the accused did not appeal to the Standing Committee cannot be treated as in any way preventing him from raising the plea before the Criminal Court, where he is sought to be convicted of an offence by the prosecutor.
This case, arising as it does under the City Municipal Act, is an additional answer to the argument of the learned Public Prosecutor based upon Veeraraghavalu v. President, Corporation of Madras : (1910)20MLJ773 The principle was followed by Devadoss, J., in Chairman, Municipal Council, Chidambaram v. Tirunarayana Aiyangar (1927) 55 M.L.J. 566: I.L.R. Mad.51 which arose out of a prosecution under Section 338 of the District Municipalities Act. The principle was there extended to an act which was ultra vires a statutory body, and with reference to such act when a person is prosecuted, it was held that it was open to him to raise the contention, and the Court was not prevented from considering the legality of the order. In the same volume at page 866 is another decision to the same effect of Phillips and Madhavan Nair JJ., which was given in a case arising under the Local Boards Act. The next was the case in Raheem Sahib, In re : AIR1929Mad600 under Section 221 of the Local Boards Act decided by Waller and Krishnan Pandalai, JJ., where also the same view was taken. Dealing with all these cases Pandrang Rao and Venkataramana Rao, JJ., in Ramaswami Aiyangar v. Sivakasi Municipality : (1937)1MLJ274 said in a case that arose under the District Municipalities Act under analogous provisions that the finality mentioned in the rule was only for the purpose of the Act and that the said finality would not prevent a person from impugning the legality or validity of the assessment in a Civil Court, and turning to the position with regard to a criminal prosecution the learned Judges said this:
Ordinarily where a person is prosecuted for any criminal offence it is incumbent upon the prosecution to affirmatively prove that an offence has been committed and if prima facie proof has been let in by the prosecution, it is open to the accused to plead and prove that he has not committed any offence. The fact that the prosecution has been launched under the provisions of a special Act would not displace this elementary rule unless there are provisions in the said Act to the contrary.
Referring to Section 354, which corresponds to Section 228 of the Local Boards Act they observed:
So far as the right of the Municipality to levy any tax is concerned, they must strictly conform to the provisions of the Act. If they do not do so, they have no right to enforce the tax. In fact Section 354 says that a charge can be validly imposed if the provisions of the Act are substantially complied with. If not there is no jurisdiction to levy it. The imposition of a tax on a person not taxable under the Act would be a substantial disregard of the provisions of the Act and in a suit for refund of the tax it is open to a person to prove that he is not taxable under the Act. We do not see why a different principle should apply in the case of a criminal prosecution and how a person can be convicted of a criminal offence for non-payment of a sum which he is not legally liable to pay. If Mr. Sitarama Rao's argument is to be pushed to its logical conclusion, it comes to this, that when once the municipality imposes an assessment it becomes final; the assessee must pay the tax and then go to a Civil Court and in the meanwhile if he is prosecuted criminally he must undergo punishment even though ultimately the Civil Court may give him redress. It will be a sorry state of affairs if such were to be the state of the law.
9. From the survey of the case-law bearing upon the question there cannot be the slightest doubt as regards the position that where the legality of the assessment is questioned or where it is contended that the assessee is not taxable at all, then the assessment that is imposed upon him has no legal existence and it would be open to him in a civil suit to question the legality of the assessment notwithstanding Rule 31 for the reason that under Section 228 the condition precedent is substantial compliance with the provisions of the Act and that requirement has not been satisfied. A fortiori would such a right be available to an accused person in a criminal prosecution not only for the reasons mentioned but for the additional reason mentioned in the decisions I have cited above, namely, that it is for the prosecution affirmatively to prove that the accused is lawfully bound to pay the tax. In the present case, apart from the general contentions, there is the further fact which has been found by the trial Court that notices were not duly served on the accused, and that would furnish an added reason to hold that there was no substantial compliance with the provisions of the Act so as to bar a prosecution in a Criminal Court in respect of the said tax. The appeal is dismissed.