MUNICIPAL COUNCIL Vs. RALLI BROS

JUDGEMENT

(1.) The defendant, the Municipal Council of Tuticorin, is the appellant. The respondent, the firm of Messrs. Ralli Bros., brought this suit for the recovery of six payments of Rs. 110 each made to the appellant on account of half yearly profession tax for the six half years ending 31 March 1936, as demanded by the appellant, on the ground that according to the District Municipalities Act, the respondent firm was not liable to the demand. The appellant's defences were that the respondent is liable to the demand and that at any rate the first five out of the six payments were voluntary and could not be recovered back. On the liability of the respondent to the profession tax the District Munsif held that the respondent was liable under Section 93, District Municipalities Act, 1920, read with Rule 18, Schedule 4 thereto.

(2.) On the second, as to the character of the payments he held that they were not voluntary. Therefore he dismissed the suit. The respondent appealed to the learned Subordinate Judge of Tuticorin who held on the first point that the respondent is not liable to the profession tax sued for but did not deal with the second point at all, that is, the nature of the payment. He gave a decree therefore for the sum sued for with costs. On this appeal both the points have been argued.

(3.) On the first point, that is, the liability to pay profession tax, if the question were res integra I should have had no difficulty in supporting the appeal. The question depends upon the construction of Section 93, District Municipalities Act, 1920, and the bearing of Rule 18, Schedule 4, that is, the financial rules, on that section. The question is whether Section 93 is controlled by the rule. My own view is that it is not. But this opinion is of no value because it has been held by a decision of a Bench of this Court by which I am bound that it is. That decision is reported in The Municipal Council, Mangalore V/s. Parry & Co. A.I.R. 1926 Mad. 1187. That was an appeal from a decision of Waller, J., on the original side. In C.S. No. 551 of 1924, which unfortunately has not been reported as far as I have been told, the question raised was exactly the same. Messrs. Parry & Co., who carry on business throughout the Presidency had business within the Municipality of Mangalore, who assessed them to profession tax. Parry & Co., brought a suite on the original side for a declaration that they were not liable to profession tax in the mofussil municipalities like Mangalore by reason only of the fact that they were carrying on business there because by E. 18 of the Financial Rules it was also requisite that their principal office should be within the limits of the Municipality which proposed to assess them.