GIRDHARILAL Vs. PROFESSION TAX ASSESSING AUTHORITY

JUDGEMENT

(1.) THIS petition has been filed by the petitioner against the assessement of the professional tax made by the Profession Tax Assessing Authority, Indore, Circle III, Indore and imposition of penalty of Rs. 15.00/ -.

(2.) ACCORDING to the petitioner he is the head of a joint family consisting of himself and his sons. The family owns immovable properties at Indore. The rental income of the family for the year commencing from Diwali 1968 to Diwali 1969 i.e. from 22.10.1968 to 5.11.1969 was Rs. 24084.00. In addition to this income of the family consisted of interest received on compulsory saving deposits and interest from other sources. According to the petitioner the professional tax could be charged at the rate determined on the basis of the income of the family derived from sources other than the rental income of the property as the definition of the 'income' provided in section 3 of M.P. Vritti, Vyapar, Aajivika, Adhiniyam, 1966 (hereinafter referred to as 'the Adhiniyam') does not talk of the 'income' from property. According to the petitioner, therefore, the rental income of the impugned year i.e. Rs. 24084.00 could not be included in the income for the purpose of determining the rate at which the tax was payable. According to the petitioner he submitted the statement of accounts and the respondent No.1 assessed the tax on the basis of the rate determined treating Rs. 24059.25 as the income of the petitioner. This figure of Rs. 24059.25 was reached by the assessing authority after adding the rental income and therefore levied the professional tax Rs.165.00 and Rs. 15.00 as penalty. The petitioner, therefore, has filed the present petition contending that under section 3 of the Adhiniyam, income from property could not be considered as it does not fall within the income derived from profession, trade, calling or employment and therefore prays that the order passed by the Assessing Authority be quashed. The petitioner in support of his contention placed on the decisions reported in Gopi Mohan and sons vs. Commissioner of Income Tax, U.P. and C.P. (1947) 15 ITR 220 and Secunderabad Club by its Secretary vs. Commissioner of sales Tax, Hyderabad State, AIR 1958 AP 332. Senairam Doongarmall vs. Commissioner of Income Tax Assam, AIR 1971 SC 1579. Waliati Ram Nathu Ram vs. Municipal Committee, Rupar, AIR 1960 Punjab 669 and Chengarath Velu vs. Executive Officer Erumayur Panchayat, Post Erumayur and another, AIR 1968 Keral 41. It was also contended by the petitioner that although the petition was filed when the present amendment in the Constitution was not in force but even after the present amendment, according to learned counsel as this petition involves the question of the fundamental rights of the petitioner Article 226 (3) of the Constitution will not be applicable to this case and the petitioner is entitled to the relief under Article 226 of the Constitution.

(3.) THIS tax has been levied by the M.P. Vritti Vyapar Aajivika Adhiniyam, 1966. This Act has been passed by the State Legislature exercising its powers under list II, Item 60 of the Seventh Schedule of the Constitution.