FIRM CHAMAN LAL Vs. THE DISTRICT BOARD

JUDGEMENT

(1.) THE facts are no longer in controversy in this appeal. The Plaintiff -firm, Chaman Lal. Amar Nath, have their main business shop within the municipal area of Tarn Taran Municipality, but they maintain a godown for storage of commodities in which they deal outside those municipal limits and within the Defendant, Amritsar District Board. They may make, and do make, delivery of the commodities stored in the godown to customers direct from the godown.

(2.) THE Defendant, Amritsar District Board, can levy professions tax according to Notification No. 5986 LB -55/44976 of August 1, 1955, which reads -' In pursuance of provisions of Sub -section (6) of Section 31 of the Punjab District Boards Act, 1883, it is notified that the District Board of Amritsar, has with the sanction of the Governor of Punjab, imposed the tax described below, within the area subject to its authority. The tax shall come into force on the 1st of April, 1956, from which date the orders contained in Punjab Government notification No. 750/ -LB -51/11 11259, dated the 30th November, 1951, shall be deemed to be cancelled. Description of the tax A tax at the rates given in the schedule below on every person, carrying on any trade, profession, calling or employment in the area subject to authority of the Board for not less then 120 days in the aggregate during a financial year, provided that the tax shall not be leviable upon co -operative societies or any person who is mainly dependent on agriculture for livelihood, or whose income does not exceed Rs. 400/ -annum." There is a schedule to this notification which gives the rate of tax at Rs 3/per year on the trades, profess -sions, callings or employments as given in it. The trade, profession or calling of the Plaintiff firm comes under Group II in the schedule in which tax is leviable at a sliding scale varying with the quantum of income.

(3.) IT is however, urged by the learned Counsel for the Plaintiff -firm that the approach of the Courts below is not correct. The reason given is that mere delivery of goods or commodity does not mean carrying on trade, profession or calling by the person making such delivery when his main place of business is other than the place where the delivery is made. The first case upon which reliance is placed by the learned Counsel in this respect is Easterm Distilleries and Sugar Factories, Ltd. v. The Municipal Council, Negapatam : A.I.R. 1933 Mad. 496. but in that case all that the learned judge decided was that the place where the company maintained a stock depot and from where liquor was supplied its by keeper against payment of cash , that was not its office as that expression was used the particular rule applicable in that case and it is obvious that on facts that case can have no bearing so far as the present litigation is concerned. The second case relied upon by the learned Counsel for the Plaintiff -firm is G.V.C. Babu Naidu v. Municipal Council. Adoni : A.I.R. 1939 Mad. 177, which though a case of profession tax turned upon the meaning and scope of the expression transact business' as used in the particular statute with regard to which the learned Judge considered the case. The facts were similar to the case which is cited above and the learned Judge was of the opinion that merely because the distillery company maintained a storage at one place with a keeper who made deliveries of liquor against cash payment, that did not mean that the distillery company was doing what was within the expression 'transact business' as used in the particular statute. No such expression comes in for consideration in the present case and this case is also not in point. The third case to which the learned Counsel for the Plaintiff firm has made reference is Jagat Parshad v. District Board Ambala : A.I.R. 1944 Lah. 385. but that was a case in which the learned Judges held that merely because a lawyer appeared in Courts situate within the territorial limits of a District Board, when his place of residence, office and chamber were situate outside those, limits, he could not be said to have been carrying on or following his profession within the territorial limits of the District Board. The learned Judges point out that a lawyer, depending upon the nature and scope of his practice, may be limited to appearance in one court or he may have to go to various places covering a large area, but that he could not he said to be carrying on or following his profession of lawyer at the place where each Court in which he appeared to plead was situate. It is obvious that this case also is nothing near the facts of the present case. There is then the case of Bajaj Electricals Ltd., New Delhi v. State of Punjab, A.I.R. 1964 P&H. 530. which also went in appeal before their Lordships of the Supreme Court and is reported as State of Punjab v. Bajaj Electricals Ltd. : A.I.R. 1968 S.C. 739. In that case the Bajaj Electricals Ltd. , maintaining their business office at Delhi and transacting all business from Delhi made deliveries of goods in Punjab and realised the price of the same through banks in Punjab. The State of Punjab sought to levy professions tax against the company under a somewhat similar provision as in the present case, but made under a new statute The claim was negatived in this Court and the decision of this Court was upheld by their Lordships on the ground that Bajaj Electricals Ltd. , were not carrying on trade or following profession or calling within the territory of Punjab State. Their Lordships observed "In the present case, the Respondent has no shop or office within the State of Punjab. The Respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State. But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab." The learned Counsel for the Plaintiff -firm relies upon this observation of their Lordships and contends that maintenance of the godown and delivery of the commodities stored therein by the Plaintiff firm is no more than an ancillary activity and the main trade or business or calling, which the Plaintiff -firm carry on are not within the territorial limits of the Defendant, Amritsar District Board, but within the limits of Tarn Taran Municipality. It has to be noted that in the Bajaj Electricals Ltd.'s case there was no storage of commodities for delivery by that company within the territorial limits of the State of Punjab. The deliveries were made through the railway for destination, and the price was realised through banks. The Bajaj Electricals Ltd., did not maintain any godown or storage within the territory of the State of Punjab, It appears to me to be obvious that the Bajaj Electricals Ltd.'s case, whether decided as in this Court or as in the Supreme Court, is not attracted to the facts of the present case. So far as the facts are concerned, there are three cases which need consideration, and of those, two are the first two cases referred to above, cited by the learned Counsel for the Plaintiff -firm, but, as pointed out, those cases proceed upon the interpretation of particular expressions applying to the same either under the rules applicable or the statute applicable to the case, and no such consideration arises so far as the facts of the present case are concerned. The third case is that of Burmah Shell Oil Storage and Distributing Coy, of India, Ltd., a case upon which the Courts below have relied upon in negativing the claim of the Plaintiff firm , and that is a case which supports the view taken by the Courts below. In that case, as already stated, the oil company had its main place of business in Calcutta where it did the whole of its business and entered into contracts with regard to the same, but it maintained storage of oil within the area of Howrah and made deliveries of the oil from that storage to customers but in relation to and under the contracts entered into with them within the limits of Calcutta. The learned Judge held that the oil company was carrying on trade at both the places in Calcutta and Howrah. I respectfully agree with the approach made by the learned Judge, and in this case it must be held that the Plaintiff -firm has been carrying on its trade, profession or calling within the area of the Defendant, Amritsar District Board, having maintained a godown for storage of the commodities in which it deals and having made deliveries to customers from that storage. The Court of first appeal seems to have been impressed by this, that this device was being adopted by the Plaintiff -firm so as to escape the levy of octroi on the commodities stored in the godown outside the municipal limits of Tarn Taran Municipality, but it otherwise the Plaintiff -firm's liability did not come within the terms of the notification under which the tax is levied upon them, then this consideration would not weigh against them