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The Panchayat Board, Razole by Its President Vs. Sait Amichand Dungarmal Firm Represented by Sait Anjarimal and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai
Decided On
Reported inAIR1941Mad686; (1941)1MLJ824
AppellantThe Panchayat Board, Razole by Its President
RespondentSait Amichand Dungarmal Firm Represented by Sait Anjarimal and ors.
Cases ReferredTiruvottiyur v. Western India Matches Co
Excerpt:
.....of such return. by sub-section (3) it is laid down that if no return is made as required under sub-rule (1) or if the president is satisfied that any return so made is incorrect or incomplete, the president shall assign to the company or person the class in the scale appropriate to the half-yearly income of such company or person as estimated by him, and sub-section (4) enacts how the president may arrive at the estimate for the purpose of such classification. no evidence was produced from the panchayat board to indicate that the president was satisfied that any of these returns was incorrect or incomplete. viyanna can only suggest that since the president did not accept the returns but made his own assignments of classes to these plaintiffs for the purpose of profession-tax, he must be..........of the act had not been substantially complied with. the rules with regard to appeals to panchayat boards are rules 28, 29, 30 and 31 in schedule iv to the local boards act. in these rules no procedure is laid down for the disposal of appeals. learned counsel for the respondents agrees with the learned district munsif in referring to a government order no. 691 which appears to have been, published in the gazette of july, the 4th, 1924. there was not, however, any proof on the side of the plaintiffs that this government order was authoritative in the sense that it was passed by the government in the exercise of any rule-making power conferred upon them by the provisions of the local boards act. its terms read rather more like advice to local boards as to the disposal of appeals. i am not.....
Judgment:

Burn, J.

1. These revision petitions are brought from the decisions of the learned District Munsif of Razole in S.C.S. Nos. 625 etc., of 1937. The suits were filed by the respondents, residents within the limits of the Union Panchayat of Razole for the refund of sums of money collected from them in the shape of profession-tax. The learned District Munsif decreed the suits and the Panchayat Board has preferred these revision petitions.

2. The Panchayat Board alleged three main reasons why the suits should be dismissed. The first was a plea that the suits were barred by limitation under Section 225 of the Madras Local Boards Act, since they had been brought more than six months after the date on which the cause of action arose. The second was that payments had been made voluntarily and therefore the sums paid could not be recovered and the third was that the suits were barred by Section 228 (2) of the Local Boards Act.

3. Mr. Viyanna for the petitioning Board has drawn my attention to the decision of the Full Bench in Panchayat Board, Tiruvottiyur v. Western India Matches Co : AIR1939Mad421 . After that decision it is no longer possible for Mr. Viyanna to contend that the suits were barred by limitation under Section 225 of the Local Boards Act. Mr. Viyanna has also not argued the second point, namely, that the payments were made voluntarily. He has devoted his argument to the question arising under Section 228 (2). That provision is as follows:

No suit shall be brought in any Court to recover any sum of money collected under the authority of this Act or to recover damages on account of any assessment or collection of money made under the said authority . provided that the provisions of this Act have been in substance and effect complied with.

4. Here the allegations were that the assessment of the plaintiffs to profession-tax had been made arbitrarily and unjustly and incorrectly. That being so, the burden was upon the Panchayat Board to show that the provisions of the Act had been in substance and effect complied with. The learned District Munsif has written a very long judgment and in some parts it is not quite clear, but his finding is (at the end of his judgment in paragraph 26) that:.the defendant Board has not complied with the provisions of the Act in substance and effect in levying profession-tax on the plaintiff firms or in disposing of their appeals.

5. Mr. Viyanna has attempted to show that the learned District Munsif has misconceived his proper function and that he has discussed the question whether the assessments were correct rather than the question whether the assessments have been correctly made. It is with regard to this point that the judgment of the learned District Munsif is not at all times quite clear; but there is, I think, sufficient indication in the record that the procedure prescribed for assessing persons to profession-tax was not substantially complied with in these cases. For this purpose the most important rule that needs to be considered is Rule 11-A in Schedule IV appended to the Local Boards Act. Under the first part of this rule the company or person upon whom a notice has been served is at liberty to submit a return showing the income derived during the half-year for which profession-tax is claimed or for the corresponding half-year of the previous year, and by Sub-section (2) it is provided that if such a return is made and if the president is satisfied that it is correct and complete, the president shall levy the profession-tax from the company or person on the basis of such return. It is further provided in the Explanation to Sub-section (2) that if the company or person produces the notice of demand of income-tax served upon it or him, the president shall be bound to take-one-half of the income mentioned in the notice as the income derived from the sources on which profession-tax is leviable for the purpose of levying profession-tax. By Sub-section (3) it is laid down that if no return is made as required under Sub-rule (1) or if the president is satisfied that any return so made is incorrect or incomplete, the president shall assign to the company or person the class in the scale appropriate to the half-yearly income of such company or person as estimated by him, and Sub-section (4) enacts how the president may arrive at the estimate for the purpose of such classification.

6. In these cases it is not disputed that returns were submitted by all the plaintiffs as required under Sub-rule (1) of Rule 11-A. No evidence was produced from the Panchayat Board to indicate that the President was satisfied that any of these returns was incorrect or incomplete. No evidence was produced to show that the president, when he assigned a certain classification to each of these plaintiffs guided himself by the considerations pointed out in Sub-rule (4) of Rule 11-A. In some instances moreover income-tax demand notices were submitted which under the Explanation already quoted ought to have been accepted as conclusive for the purpose of classification. Mr. Viyanna can only suggest that since the president did not accept the returns but made his own assignments of classes to these plaintiffs for the purpose of profession-tax, he must be deemed or presumed to have been satisfied that the returns were incorrect or incomplete. I do not think this can fairly be inferred. Since the president gave no reasons of any kind for the assessments which he made and since he made no reference to the accounts or income-tax demand notices submitted, it seems much more probable that the president took no notice of the provisions of Rule 11-A of Schedule IV. It cannot in any case I think be said that the Board proved that the provisions of Rule 11-A have been in substance and in effect complied with.

7. The plaintiffs also made objections to the manner in which their appeals had been disposed of. They alleged that with their appeals they had also produced their accounts and that no notice had been taken of their accounts. This contention appears to have been correct in fact, but by itself this would not, I think, suffice to show that the provisions of the Act had not been substantially complied with. The rules with regard to appeals to Panchayat Boards are Rules 28, 29, 30 and 31 in Schedule IV to the Local Boards Act. In these rules no procedure is laid down for the disposal of appeals. Learned Counsel for the respondents agrees with the learned District Munsif in referring to a Government Order No. 691 which appears to have been, published in the Gazette of July, the 4th, 1924. There was not, however, any proof on the side of the plaintiffs that this Government Order was authoritative in the sense that it was passed by the Government in the exercise of any rule-making power conferred upon them by the provisions of the Local Boards Act. Its terms read rather more like advice to local boards as to the disposal of appeals. I am not satisfied therefore that this Government Order has been shown to have the force of law.

8. For the reasons already indicated I think the decision of the learned District Munsif in these cases is in accordance with law. These petitions must therefore be dismissed with costs-one Vakil's fee for the batch Rs. 150.


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