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The Commissioners of the Burdwan Municipality and ors. Vs. Bata Shoe Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtKolkata
Decided On
Reported inAIR1947Cal383
AppellantThe Commissioners of the Burdwan Municipality and ors.
RespondentBata Shoe Co. Ltd.
Cases ReferredIn Tenant v. Smith
Excerpt:
- .....of a tax on trades, professions and callings. the resolution mentioned all the different items of schedule 4 of the act as worded before the amendment of 1940 and fixed the tax at the maximum rates mentioned in the said schedule, item 1 of that schedule had been amended in a material manner by notification no. 1662 m dated 16-12-1940 issued by the provincial government under the powers given by section 557 of the act, but the parties before us have waived all points of technical nature and have asked us to proceed on the footing as if the resolution had embodied item 1 of that schedule as amended on 16 12-1940. after the said resolution had been passed, the municipality made a demand on the company requiring it to pay half-yearly the sum of rs. 100. the company paid rs. 200 for.....
Judgment:

R.C. Mitter, J.

1. The Bata Shoe Company Ltd. (hereafter called the company) is a company registered under the Companies Act. Its paid up capital is Rs. 10,00,000. It manufactures shoes and other foot-wear at Batanagore in 24 Par-ganas. It has two retail shops within the limits of Burdwan Municipality from which it sells a part--may be a very small part--of the goods manufactured at Batanagore. The Commissioners of the Burdwan Municipality exercised the powers given by Section 123(1), Clause (f), Bengal Municipal Act of 1932 (hereafter called the Act) by passing a resolution at a meeting held on 27-2-1941 for the imposition of a tax on trades, professions and callings. The resolution mentioned all the different items of Schedule 4 of the Act as worded before the amendment of 1940 and fixed the tax at the maximum rates mentioned in the said schedule, Item 1 of that schedule had been amended in a material manner by Notification No. 1662 M dated 16-12-1940 issued by the Provincial Government under the powers given by Section 557 of the Act, but the parties before us have waived all points of technical nature and have asked us to proceed on the footing as if the resolution had embodied item 1 of that schedule as amended on 16 12-1940. After the said resolution had been passed, the Municipality made a demand on the company requiring it to pay half-yearly the sum of Rs. 100. The company paid Rs. 200 for the two half years of 1941-1942 under protest and then filed the suit in which the appeal arises for refund, contending (1) that the Municipality had acted illegally, and (2) that in any event it was only liable to pay the amount mentioned not in item 1 but in item 4 of Schedule 4 of the Act, as its shops within the Burdwan Municipality were only retail shops. Besides controverting those points the Commissioners of the Municipality contended that the suit was barred by limitation. The Munsif decided all the points so raised against the company and dismissed the suit. On appeal the learned District Judge held that:

(1) the suit was not barred by time, and (2) the commissioners had acted illegally, inasmuch as they had not dealt with the application for review made by the company under Section 148 of the Act in accordance with law.

The learned District Judge on that view of the matter did not decide the other points. After the hearing had proceeded for some time the learned Advocates appearing for both the parties stated before us that it is the desire of the parties that we should give our decisions on two points namely: (1) whether the commissioners of any Municipality governed by the Bengal Municipal Act of 1932 could at all impose on any company, association or body of individuals a tax of the description mentioned in item 1 of Schedule 4, and (ii) that assuming it could, whether the respondent company is liable to pay what is mentioned in item 1 or in item 4 of that schedule, seeing that the Commissioners of the Municipality had included both those items (as also the other items) of Schedule 4 in their resolution of 27-2-1941. To enable us to decide those two questions Mr. Gupta appearing for the Commissioners concedes that the question, of limitation had been rightly decided by the learned District Judge and Dr. Basak appearing for the Company concedes that the learned District Judge is wrong in holding that his client's application for review had been illegally rejected.

2. The first question depends upon the effect of Sections 123(1)(f) and 182 and item No. 1 of Schedule 4 of the Act. Item 1 of the schedule as amended on 16 -12-1940 is as follows:

Company or association or body of individuals, which exercise any trade, profession or calling whatsoever for profit or as a benefit society of which the paid up capital is equivalent to....

3. Then follow the different maximum rates of half yearly tax. Before, the said amendment it ran thus:

Company transacting business within the municipality for profit or as a benefit society of which the paid up capital is equivalent to Rs....

4. Then followed the different maximum rates of tax which were not altered by the amendment of 16-12-1940. The omission of the phrase 'within the municipality' in the item as amended in 1940 is not material. In view of the provisions of Section 182 it was a mere repetition.

5. The contention of the Advocate appearing for the Company is that Sections 123(1)(f) and 182 require that trades, professions and callings must be specified, that is to say, described in detail, in the schedule and as that has not been done in item 1 thereof no tax can be levied by any Municipality in terms of that item. The contention of the Advocate appearing for the Commissioners is: (a) that the phrase 'trades, professions and callings specified in schedule IV' occurring in those two sections is to be read as 'trades, professions and callings as specified in Schedule IV,' and (b) alternatively, if the Company's contention be accepted, item 1 as it stands after the amendment of 16-12-1940 has satisfied the requirements of Sections 123(1)(f) and 182.

6. Section 123(1)(f) empowers the commissioners of a municipality to impose 'a tax on trades, professions and callings specified in Schedule IV,' and Section 182, which is the charging section requires every person who exercises in the municipality any of the professions, trades or callings specified in schedule iv to take out a license and to pay the tax imposed under Section 123(1)(f) by the commissioners. The said schedule can be altered or added to by notifications issued by the Provincial Government, (Section 557) and the schedule so altered by the Provincial Government is as much a part of the Act as the original schedule which had been enacted by the Legislature itself. This fact is in our judgment very material. The different items of that schedule stand on the same footing as the sections of the Act itself. As the tax is to be a tax on persons who exercise trades, professions or callings the Provincial Government cannot by an amendment, either by addition to or by way of alteration of that schedule as enacted by the Legislature itself, include an item which has no connection with 'trade, profession or calling.' That is the manifest limitation on the powers of the Provincial Government and is the only limitation. The amendment of item 1 made by the notification issued by the Provincial Government on 16-12-1940 satisfies the test, for, it refers not to a company, association or body of individuals simpliciter, but to a company, association or body of individuals exercising trade, profession or calling. One of the reasons given in Corporation of Calcutta v. Standard Marine Insurance Co. ('95) 22 Cal. 581, on which the company relies, does not therefore apply to the case before us. The other reason given therein does not also apply. Moreover, there are some observations therein to which we will refer hereafter, which, in our opinion, support to a considerable extent the alternative contention of the Municipality.

7. That case was under the Calcutta Municipal Act (2 [II] 1888). The charging section--Section 87--required

every parson who shall exercise in Calcutta any of the professions, trades, or callings prescribed in the second schedule shall annually take out a license and shall pay for the same such sum as in the second schedule mentioned.

Its language is in pari materia with Section 182 read with Section 123(1)(f) of the Act we are considering, except that in the latter the word 'specified' occurs in the place of the word 'prescribed', and we take it that one is a synonym for the other. Schedule II placed licenses in seven classes. Class I and item No. (a) of class II mentioned 'Joint Stock Companies' simpliciter, that is, without giving any indication as to whether they are to be trading companies or not, or whether they are to be companies which can be regarded as 'exercising' professions or callings. Generally speaking, the other items of class II and the items of the other classes indicate more or less precisely the nature of the trade, calling or profession. Merchants and wholesale and retail traders, however, are mentioned without any reference to the nature of their trade and item (a) of class VI is 'Every keeper of a shop or place of business not included in any other class'. Petheram C.J. and Beverley J. held that a Joint Stock Company cannot be taxed simply because it is a company and that the tax can only be imposed on a Joint Stock Company which carries on one of the taxable businesses. They also held as a matter of construction that the businesses 'prescribed' are those mentioned in other parts of Schedule 2 and a Joint Stock Company, which is included in the term person, would only be liable to be taxed if it carried on one of those businesses. In the course of the judgment they observed that there were 'no general words to be found in it (class i), which would be wide enough to include such a business' (e.g. insurance business). It was possible to put the construction on the words occurring in class I, which they put upon it, only because there were no general words; that is to say, words which would include every trade or business, used in qualifying class I as it stood. In the case before us, there are general words, namely, 'which exercise any trade, profession or calling whatsoever for profit' in item 1 of Schedule IV of the Act. It seems to us that those general words were introduced in view of the observations of Patterson J. in Municipal Commissioners of Barranagore v. Barranagore Jute Factory, Ltd. : AIR1937Cal324 . There would not have been any scope for argument on behalf of the respondent company, if item 1 had contained an exhaustive list of trades, professions and callings, and in our judgment those general words have the same effect as if there had been such an exhaustive list. In our judgment even if the word 'specified' in the phrase in question occurring in Sections 123(1)(f) and 182 has the effect as attributed to it by the Company's advocate item 1 of the schedule as it stands after amendment of 16-12-1940 is in accordance with those sections. In this view, it is not necessary to consider the question in reference to item 1 as it stood before the said amendment, on which there was difference of opinion. We may, however, say that we prefer to follow the decision in Landale and Clerk v. Chairman of the Jalgaiguri Municipality 24 A.I.R. 1937 Cal. 531. We are also inclined to uphold the alternative contention of the advocate appearing for the Commissioners and to hold that 'specified' means 'as specified.' That is the view expressed by Jack J. in Municipal Commissioners of Barranagore v. Barranagore Jute Factory, Ltd. : AIR1937Cal324 , for otherwise, seeing that item 1 of Schedule IV, even as it originally stood, which was an enactment of the same legislation which had enacted Section 123(1)(f) and Section 182, it would have been of no purpose. Merchants, wholesale and retail traders mentioned in items 2 and 4 could also not have been taxed, if the word 'specified' be given the effect contended for by the Company's advocate, for, in those cases the nature of the trade--the line of business--has not been detailed in those items of the schedule. We accordingly overrule the first point urged by the Company.

8. The remaining question is whether the respondent Company can be only assessed under item 4 of the schedule, because its shops within the Burdwan Municipality are retail shops. In Tenant v. Smith (1892) 1892 A.C. 150 at p. 154 Lord Halsbury observed thus:

Cases, therefore, under the Taxing Acts always resolve themselves into a question as to whether or not the words of the Act have reached the alleged subject of taxation.

There cannot be any doubt that the respondent Company is 'exercising trade' within the Burdwan Municipality by selling its goods through its retail shops. The words used in item 1 have reached it. It is, so far as Burdwan is concerned, a retail trader and so comes within the language of item 4 also. The question, therefore, is whether item 4 excludes a company, association or body of individuals with a 'paid up capital.' So far as words are concerned, many of the classes mentioned in items 2, 3, 4 would cover natural as well as artificial persons, but as companies, associations and bodies of individuals 'with paid up capital' are treated as a class by themselves and maximum rate of tax is fixed with reference to the paid up capital, the nature of their trading activities or the volume of their business within a particular Municipality is immaterial. Items 2 to 4 must, in our judgment, have been intended to cover those persons, whether natural or artificial, who do not fall within the description mentioned in item 1, namely, those having a paid up capital. We accordingly hold that the respondent Company has been rightly assessed under item 1.

9. The result is that this appeal is allowed and the suit of the Company dismissed. The parties to bear their respective costs throughout.

Nasim Ali, J.

I agree.


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