RAMLAL BHUNYADIN KALAR Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) THIS is a reference under Section 83(2), C.P. Municipalities Act. Between the end of 1931 and the beginning of 1933 Ramlal imported firewood by rail into Nagpur. This was liable to terminal tax at 2 annas 6 pies per cart or 3 pies per maund. At one time the Municipal Committee seems to have assumed that a wagon contains 16 cartloads and to have levied tax accordingly at Rs. 2-8-0 per wagon. Afterwards it assumed that the weight of the firewood in the wagon was the weight assumed for purposes of calculating railway freight and it accordingly levied the tax at 3 pies per maund on such weight. I entirely agree with the Deputy Commissioner that the Municipal Committee has no power to levy the tax except at the scheduled rates of 2 annas 6 pies per actual cartload or at 3 pies per actual maund imported. In January 1934 Ramlal put in an application to the Municipal Committee for what he described as a refund of excess terminal tax on firewood. His contention was that the tax should have been charged at Rs. 2-8-0 per wagon as it used to be, and that if so, an excess amount of Rs. 1082-8-6 had been recovered from him. The point referred to me is whether such an application is governed by the three months rule laid down in Rule 1 of the rules made under Section 85 of the Act. Ramlal's contention is that the money recovered from him in excess of what was due should not be treated as a tax and that therefore the three months' rule will not apply. I should make it clear that it has been stated that there were earlier applications made by Ramlal for refund, some of which may have been within three months of payment. The only point that I am deciding is whether such a claim for refund must be made within three months of the date of payment.

(2.) THE Municipal Committee was entitled to levy a terminal tax on firewood. Owing to a wrong assumption it may have miscalculated what was due, but what was recovered was undoubtedly recovered as a tax and could not have been recovered as anything else. The decision in Kashinath v. Municipal Committee, Nagpur AIR 1935 Nag 172 is not in point because there admittedly the payments were made not as taxes but as deposits. Here the payments were claimed and made as taxes. Section 84(3) of the Act provides that no objection shall be taken to any valuation, assessment, or levy, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act, and Section 85(1) provides that the Provincial Government may make rules under this Act regulating the refund of taxes and such rules may impose limitations on such refunds. Ramlal's application is clearly an objection to an assessment and a claim for a refund of a tax. Ramlal is in an impossible position because, if this is not a claim for refund of a tax, then Section 85 of the Act and the rules there under will not apply and Ramlal's only remedy would be a civil suit, which would presumably be barred by limitation. It was suggested in the course of the arguments that the point might be referred to a Division Bench, but the point seems to me to be so clear that no reference is necessary. My decision therefore is that the refund of an amount recovered as a tax, even if that amount was calculated on a wrong basis, is governed by the rules made under Section 85, C.P. Municipalities Act. There will be no order for costs.