(1.) THIS petition is to quash an assessment made under section 86 of the Cochin Municipal Act,XVIII of 1113,on the petitioner,a resident within the limits of the respondent Municipality,in respect of his income from paddy lands which belong to him and are situated outside such limits.The petition,as presented,was on various grounds;and had been posted with civil miscellaneous references pending before a Full Bench and raising certain common questions.The Full Bench having answered one of such questions having a bearing on the decision of this petition,has returned this petition to be disposed of by a single Judge.This is how the matter has come up before me.The only contention which was pressed before me was,that the income on the basis of which the assessment was made,is outside the provisions of section 86(1)of the Act. A preliminary objection was raised by the learned counsel for the respondent,that the petitioner had not availed himself of the alternative remedy which was available to him by preferring an appeal against the assessment.The petition having raised an issue as to the taxability of the income and as to the power of the respondent to make a levy,which is now concluded against him by the decision of the Supreme Court,I think it will be a proper exercise of discretion not to allow this objection.I also overrule the objection raised by the petitioner's learned counsel,that the ground taken by him for quashing the assessments that the income from the paddy lands is not income from investments within the meaning of section 86(1)of the Act,has not been denied or challenged.I consider,that the denial in the counter affidavit is sufficient and is explicit and is different from what was taken to be otherwise by the Supreme Court in Mineral Development Ltd v.State of Bihar A.I.R.1960 S.C.468 at 473,on which reliance was placed. It was contended,that the decision of the Full Bench in Commissioner,City Corporation, Trivandrum v.Harihara Iyer I.L.R.1960 Kerala 862,on the meaning and import of the term ˜income from investments ™in section 107(1 )(b)of the Trivandrum City Municipal Act,IV of 1116,cannot govern the interpretation of the same term as it occurs in section 86(1 )(b)of the Act.The material part of section 86 may be extracted below:" Section 86(1 ):If the Council by a resolution determines that a tax on profession and other sources of income shall be levied ;.every person,not made liable to the company's tax under section 85,who after the said date,in any half year "™™ (a)exercises a profession,art or calling or transacts business or holds any appointment,public or private " (i)within the Municipality for not less than sixty days in the aggregate,or (ii)without the Municipality but who resides in the Municipality for not less than sixty days in the aggregate,or (b)resides in the Municipality for not less than sixty days in the aggregate and is in receipt of any pension or income from investments, shall pay a half -yearly tax assessed in accordance with the rates shown in Schedule II ;. A distinction was made by the learned counsel between the provisions in the two statutes on two ground,firstly that the corresponding provision in section 49(1)of the Cochin Municipal Regulation,XI of 1096,which was repealed by the Act of 1113 shows,that income from houses and lands were not treated as income from investments,but was dealt with under a different category of income,and secondly that though this distinction is not made explicit in section 86(1)of the Act,Schedule II appended to it,has adopted the categorisation of income as under the earlier Cochin Statute.Assuming this distinction in the earlier statute,the learned counsel contended for a principle,that in the case of a repeal of an earlier statute and re -enactment of a later one,the same words occurring in the two enactments must bear the same import and relied on the decision of the Supreme Court in S.B.Adityan v.S.Kandaswami A.I.R.1958 S.C.857.In that case it was held,that the deletion of section 124(3)from the Representation of the People Act,1951,by the Amending Act XXVII of 1956,did not enlarge the meaning of section 123(1)of the Act,which was not amended,and which,according to earlier decided cases,had received a settled interpretation.The principle recognised by the Supreme Court is different from what the learned counsel has contended for.The learned counsel was able to rely only on the case cited in support of this contention.The Heading of Schedule II of the Act which was next referred to and which reads:" Tax on persons exercising professions,arts,trades and callings,holding appointment or in receipt of pensions or income from investments or money lending or any source other than houses and lands inside the Municipal limits " ;. Is not conclusive,that lands and buildings can under no circumstances,be investments and the heading of the schedule cannot control the meaning and operation of the enacting part of the statute,i.e .,section 86(1)of the Act.As held by the Full Bench in Commissioner,City Corporation,Trivandrum v .Harihara Iyer the schedule is meant to prescribe the rates for taxation as provided by the charging section.Section 86(1 )(b)of the Act is in pari materia with section 107(1 )(b)of the Trivandrum City Municipal Act,and the interpretation which the Full Bench has placed on this term occurring in the latter Act,must hold for the former as well.The learned counsel had a further argument,that to attract tax liability,the investment must have been made by the assessee himself,and that it is not enough,if it was made by someone else and the assessee succeeded to it or obtained the right to it without himself spending anything in that behalf.The learned counsel was,however,prepared to grant,that if the investment was made by the joint family of which the assessee is a member,it could be deemed to be an investment also by himself.Having held that the interpretation of the term by the Full Bench is applicable to the present case,in the course that lam adopting,I have only to leave it to the assessing authority to consider and decide,whether the income from the petitioner's paddy lands can be treated as income from investments within the meaning of section 86(1 )(b)of the Act. The learned counsel for the respondent also contended,that income from paddy lands may be deemed to be income from other sources within the meaning of section 86(1)of the Act and is liable to be assessed as such.So fat as I can see,the only basis for this contention is,the heading of section 86 Tax on profession and other sources of income and also the opening sentence of section 86(1 ),which formulates,as it were,a condition precedent to the imposition,that the Municipal Council by a resolution should have decided that a tax on profession and other sources of income shall be levied.There being no provision anywhere else in the Act,the several clauses in section 86(1)must be deemed to be exhaustive of the sources of taxable income;such categories include also income from art,or calling or business,or appointment,or pension or investment.These can be the only other sources contemplated by the heading and by the opening part of section 86(1 ).Section 86(2)on which some reliance was placed,provides only,that the assessee shall be chargeable on the aggregate income from all sources specified in sub -section(1)and cannot be relied on for the purpose of enlarging the scope of sub -section(1)itself.However,it is for the respondent to see,if it so chooses,to bring the income from paddy lands under any of the categories of income dealt with in section 86(1 ),although it cannot travel outside its limits.The learned counsel for the respondent suggested,that this type of income may also be brought under income from a calling as to which I express no opinion. Lastly it was pointed out,that even a surcharge had been imposed.Now that the assesment against the petitioner is being quashed,the assessing authority may make fresh assessment in accordance with law.The assesment is therefore quashed.I do not order costs.