KOTTAYAM MUNICIPALITY Vs. PARTHAS TRUST

JUDGEMENT

(1.) O. S. No. 398 of 1977 filed by Parthas Trust, Alappuzha and o. S. No. 123 of 1978 filed by M/s. S. Veeriah Reddiar, Kottayam against the Kottayam Municipality were jointly tried by the munsiff, Kottayam and disposed of by a common judgment. O. S. No. 123 of 1978 was dismissed and O. S. No. 398 of 1977 was decreed. The dismissal of O. S. No. 123 of 1978 was not taken up in appeal. The decree in 6. S. No. 398 of 1977 was the subject matter of A. S. No. 35 of 1983 filed by the defendant Municipality before the Subordinate Judge, Kottayam. The appeal was dismissed in confirmation of the decree of the trial court. That is how the defendant Municipality came up in second appeal.

(2.) THE reliefs sought for in the suit are: i) for a declaration that the appellant is not entitled to levy anything more than rs. 250/- per year as profession tax from the respondent; ii) for refund of the excess amount already realised; and iii) for injunction to restrain the appellant from realising anything more than as stated above in future also. THE appellant Municipality claimed the benefits of the proviso to R. 19 (1) of schedule II of the Taxation and Finance Rules and contended that the reliefs claimed in the plaint cannot be allowed.

(3.) THE Kerala Municipalities Act, by S. 3 (9), adopted the definition of 'company' in S. 3 of the Companies Act and provided that it includes a foreign company, a co-operative society, a firm or association of persons carrying on business. Prior to 17-8-1971 and subsequent to 16-8-1978, the respondent-plaintiff was and is a partnership firm. In my opinion, it is immaterial whether the respondent-plaintiff will come within the definition of company or it could be treated only as a person. Either for the purpose of s. 110 of the Kerala Municipalities Act or for the purpose of R. 19 (1) of the Taxation and Finance Rules, it is immaterial whether the assessee of profession tax is an individual oracompany. R. 19 (1) itself says that the classes into which companies and persons shall, for the purposes of assessment to the profession tax, be divided and the maximum half-yearly tax leviable on each class shall be as follows: That means, the rules are applicable both to companies and persons equally. THE classes mentioned in the rule by categorisation are only on the basis of the half-yearly income irrespective of the question whether the assessee is an individual or a company. I fail to understand how the trial court and the appellate court came to the conclusion that the benefit of the proviso is not available to the Municipality solely for the reason that the assessee is not a company, but only an individual.