Madhavan Nair, J.
1. The plaintiff is the appellant, This second appeal arises out of a suit instituted by the plaintiff for the recovery of professional tax of a sum of Rs. 119-12-0 together with interest alleged to have been collected from him wrongfully by the defendant, the Taluk Board of Chicacole represented by its President. The Board assessed the appellant to a professional tax on the ground that he was carrying on money-lending business as his profession. His case is that he is not carrying on the profession of a money-lender and that his accounts, if inspected, would prove his plea; but that the President of the Board refused to look into them. Without examining the merits of his contention, the lower Courts dismissed the suit, as barred by Section 228, Local Boards Act 14 of 1920. Clause (2) of this section expressly bars a suit
to recover any sum of money collected under authority of this Act....provided that the provisions of this Act have been in substance and effect complied with,
2. The plaintiff's argument is that an examination of his accounts would show that he is not carrying on the profession of a money-lender, and that if the tax is collected from a person who is not taxable under the Act at all, there has been a substantial disregard of the provisions of this Act and that therefore Clause (2) Section 228 will not be a bar to the institution of a suit. I think this contention is supported by authority. In Municipal Council, Cocnada v. The Standard Life Assurance Company 24Mad.205, a decision under Section 262, District Municipalities Act 4 of 1884, which corresponds to Section 228 of the present Local Boards Act, the Municipal Council of Cocanada levied profession tax on the Standard Life Assurance Company for carrying on business within the Municipality. On the ground that the company was not doing business in Cocanada this Court held that the Municipal Council went beyond their powers in exacting the tax and that Section 262 would not be a bar to the suit to recover the tax from the Municipal Council The learned Judges (Shepherd and Boddam JJ.) formulated the question for decision thus:
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.
3. 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. Then after referring to some cases for distinguishing them from the case under consideration, the learned Judges stated:
We can see no difference in principle between an 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.
4. I think these observations may well be applied to the present case. Under Section 93, Local Boards Act, a tax can be levied on a person who carries on money-lending as a profession within the Municipality. If the plaintiff's case is true, his accounts will show that though he may have on a few occasions lent money, he has not been actually exercising the profession of a money-lender and that therefore he is not taxable under the Act. If he is able to substantiate his case then the tax has been collected from him who is not taxable under the Act and according to the decision just quoted there has been a substantial disregard of the provisions of the Act and Section 228, Local Boards Act, would not be a bar to the suit. In Municipal Council of Mangalore v. The Codial Bail Press 27Mad.547, it was held by Sir Subramania Ayyar, Officiating Chief Justice and Bashyam Ayyangar, J., that if a person was assessed under Section 53, Schedule (a), Act 4 of 1884 on his 'gross income' instead of on his 'net income' the provisions of the Act have not been in substance and effect complied with and that Section 262 of the Act would not be a bar to the suit to recover the amount of tax,paid under the assessment.
5. This decision was followed by Devadoss, J., in Arunachalam Chettiar v. Namakhal Union Board A.I.R.1928Mad.346, wherein it is stated that when the basis of the assessment is in question a civil Court can entertain a suit for setting aside the assessment on the ground that the basis of the assessment itself is wrong and that Section 228 does not bar such a suit. In this case also the question was whether the met income or the gross income should have been the basis of assessment. The decisions in Municipal Council, Cocanada v. Standard Life Assurance Co., Ltd. and Municipal Council, Mangalore v. Co-dial Bail Press 27Mad.547 were followed by Beasley, J., as he then was in Bombay Company Limited v. Municipal Council, Dindigul : AIR1929Mad146 . Reference may also be made to the case in Chairman of the Municipal Council, Kumbahonam V. Rally Brothers A.I.R. 1931Mad.497, (Curgenven and Bhashyam Ayyangar, JJ.), a decision under Sub-section (2), S..354, District Municipalities Act 5 of 1920, corresponding to Section 228, Clause 2, Local Boards Act. The learned Judges followed the decision in Municipal Council. Cocanada v. The Standard Life Assurance Co., Ltd. and Municipal Council of Mangalore v The Codialbail Press 27Mad.547. In that case the action of the Municipal Council in fixing the rates of municipal license fees was found to be ultra vires, and it was therefore held that the provisions of the Act have not been in substance and effect complied with.
6. As against these decisions, which in my opinion amply support the contention of the appellant, the respondent mainly relies on a decision by Krishnan, J., in Municipal Chairman, Virudupatti v. Saravana Pillai 54 I.C.454. In that case which was under Section 228, Act 4 of 1884, the earned Judge observed that
it would not thus be open to the civil Court to find that his assessment was erroneous on facts or go into the questions of the amount of a person's income as that is not the ground on which the application for prohibition against suits in Section 262 can be avoided.
7. Having regard to the fact that the contention of the appellant is that he is not taxable under the Act at all these observations will obviously not apply to the present case. It is important to notice that in the earlier part of the judgment the learned Judge states:
There is no case made here that in assessing the plaintiff any of the relevant provisions of the Act were not complied with; nor is this a suit falling within the proviso to Section 262.
8. This would show that if the provisions of the Act were not complied with as in this case, by taxing a person who is not taxable at all the case would certainly not be barred under Section 228, Local Boards Act.
9. The decision in Pattar Purnachandra Mala Jamma v. President, Taluk Board, Chicacole 113 I.C.560, by Jackson, J., may at first sight appear to support the respondent. But the facts mentioned in the judgment show that no provision of the Act was violated by the Municipality in making the assessment. But what happened was that a mistake of fact wa8 committed bona fide by the assessing authority. In the present case the Board has disregarded a provision of law and taxed a person not taxable at all if the plaintiff's case is true. Cases of 'fundamental departures from the meaning of the statute' are excluded from the operation of the bar by the learned Judge and he accepts the authority of Municipal Council, Cocanada v. Standard Life Assurance Co., Ltd. the leading Madras case on the subject. The decision in Krishnamachariar v. Municipal Council, Srirangam A.I.R.1926Mad.448, is clearly distinguishable on the facts from the present case and it follows a prior decision of this Court which has been explained in Municipal Council, Cocanada v. Standard Life Assurance Co., Ltd. In A.I.R.1928 Mad.i08, Lakshmanan Chettiar v. Municipal Council, Trichinopoly, the learned Judge is clearly of opinion that the provisions of the Act were complied with in substance and effect by the Municipality.
10. Following the decisions in Municipal Council, Cocanada v. The Standard Life Assurance Co., Ltd. and Municipal Council of Mangalore v. The Codialbail Press, I would hold that the complaint of the plaintiff being that he was not liable to be taxed under the Act, Section 228 (2) is 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. For the above reasons, the decrees of the lower Courts are set aside and the case is remanded to the Court of the District Munsif of Chicacole, for disposal according to law. Costs will abide the result. Court-fee will be refunded
11. C.R.P. No. 278 of 1929.-No special order is necessary in this civil revision petition. The order in the Second Appeal will apply to this civil revision petition, also. No costs.