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R.S. Sankaranarayana Reddiar Vs. the Taluk Board of Aruppukottai Through Its President and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtChennai
Decided On
Reported inAIR1938Mad211; (1937)2MLJ903
AppellantR.S. Sankaranarayana Reddiar
RespondentThe Taluk Board of Aruppukottai Through Its President and anr.
Cases Referred(Vide Municipal Council of Mangalore v. The Codial BailPress
Excerpt:
.....computed under section 10 of the indian income-tax act, 1922, for the purpose of assessing the income-tax'.it is not disputed that the petitioner was assessed to income-tax for the year 1930-1931 (vide ex. it is well settled that where a local board empowered to levy a tax adopts a basis different from that specified by the act, which gives them the power, the levy is ultra vires (vide municipal council of mangalore v......by the taluk board of aruppukottai in ramnad district. the amount levied was rs. 100 for each half year; notices of demand were served on the petitioner for each half year's levy. he failed to prefer an appeal soon after the service of notice with reference to the half year ending 30th september 1930, but he did it only after the service of notice with reference to the 2nd half year, for both half years after paying the taxes levied. the appeal was filed on the 11th may 1931, the date of service of notice being 10th april 1931 and the 10th may being sunday. the president of the taluk board rejected the appeal as time barred, without placing the memorandum of appeal before the board as he was bound to. this action of the president is not justified before me; the levy is impeached as not.....
Judgment:

Venkatasubba Rao, J.

1. The question in this Civil Revision Petition relates to the legality of the profession tax levied on the petitioner for two half years, i.e., the half year ending 30th September 1930 and the half year ending 31st March 1931, by the Taluk Board of Aruppukottai in Ramnad District. The amount levied was Rs. 100 for each half year; notices of demand were served on the petitioner for each half year's levy. He failed to prefer an appeal soon after the service of notice with reference to the half year ending 30th September 1930, but he did it only after the service of notice with reference to the 2nd half year, for both half years after paying the taxes levied. The appeal was filed on the 11th May 1931, the date of service of notice being 10th April 1931 and the 10th May being Sunday. The president of the Taluk Board rejected the appeal as time barred, without placing the memorandum of appeal before the Board as he was bound to. This action of the president is not justified before me; the levy is impeached as not being in accordance with the provisions of the Local Boards Act and the rules framed thereunder.

2. Two main grounds are alleged, namely:

(i) No notice was served on the petitioner calling on him to furnish a return as required by Rule 11-Aof the Madras Local Boards Act, as amended by the Madras Act XI of 1930;

(ii) The basis of taxation is wrong as being in contravention of Rule 11 of Schedule IV of the said Act.

The learned District Munsiff, who tried the suit, found that no notice under Rule 11-A was served and that no evidence was adduced by the Taluk Board to prove that such a notice was served. The learned Subordinate Judge did not specifically give a finding in regard thereto, but only observed that the plaintiff admitted that a notice was given. On a reference to the plaintiff's evidence, it will be seen that notice was given to him to produce his accounts, which the President had no power to call for under Clause (5) of Rule 11-A. Therefore it must be taken that the provisions of Rule 11-A were not complied with. It is not disputed that the said rule would be applicable to the case but for a Government notification to which I shall presently refer. Prima facie the levy would be illegal; so found the learned District Munsiff. But the levy was sought to be justified in appeal on the ground that the Taluk Board was not bound to give a notice under Rule 11-A having regard to the Government notification issued on the 6th October 1931 long after the levy. This contention prevailed with the Subordinate Judge who reversed the decision of the District Munsiff. The said notification runs thus:

In exercise of the powers conferred by Section 179 of the Madras District Municipalities Act, Rule 12 of the Schedule to the Madras Local Boards (Amendment) Act, 1930' (Madras Act X of 1930) (Amendment) Act, 1930 (Madras Act XI of 1930) Governor acting with Ministers is hereby pleased notwithstanding anything contained in the said Act, to direct that chairman of Municipal Councils, Presidents of Panchayats shall have power and shall be deemed to have had power until 30th September, 1931, to levy profession tax on companies and persons in respect of the half years ending 31st March, 1931 and 30th September, 1931, respectively, without serving the notice required by sub-r. (1) of Rule 19/11-A of Schedule IV to the Madras District Municipalities Act, 1920 (Madras Act V of 1920).

Madras Local Boards Act (Madras Act XIV of 1920).

3. This notification purports to have been issued under Rule 12 of the transitional provisions of Madras Act XI of 1930. The said rule is to this effect:

If any difficulty arises as to the first constitution or reconstitution of any Local Boards after the commencement of this Act or otherwise in first giving effect to the provisions of this Act or of the said Act as amended by this Act, the Local Government as occasion may require, may by order do anything which appears to them necessary for the purpose of removing the difficulty.

4. Prima facie the notification cannot apply to the half year ending 30th September 1930. In regard to the half year ending 31st March, 1931, it is extremely doubtful if Rule 12 could empower the Government to issue the notification in question. Assuming however that the Government had the power to do so, it seems to me that the basis of taxation indicated in Rule 11 should be followed. Rule 11 clearly says that 'the income shall be deemed to be' on a certain basis and in the case of a person assessed to income-tax for the year comprising the half year in question, 'one half of the amount at which the profits and gains' of the business of the person against whom the levy is sought to be made 'are computed under Section 10 of the Indian Income-tax Act, 1922, for the purpose of assessing the income-tax'. It is not disputed that the petitioner was assessed to income-tax for the year 1930-1931 (vide Ex. A-1). The Taluk Board must therefore be deemed to have disregarded the basis enjoined on them under the Act and the rules. It is well settled that where a Local Board empowered to levy a tax adopts a basis different from that specified by the Act, which gives them the power, the levy is ultra vires (Vide Municipal Council of Mangalore v. The Codial BailPress (1903) 14 M.L.J. 410: I.L.R. 27 Mad. 547.) The levy is thus illegal in this case. I therefore reverse the decree of the learned Subordinate Judge and restore that of the District Munsiff. I direct each party to bear his or their own costs throughout.


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