MALYALAM PLANTATIONS LTD Vs. COMMISSIONER QUILON MUNICIPALITY
LAWS(KER)-1963-9-24
HIGH COURT OF KERALA
Decided on September 24,1963

MALYALAM PLANTATIONS LTD. Appellant
VERSUS
COMMISSIONER, QUILON MUNICIPALITY Respondents





Cited Judgements :-

TRAVANCORE MINERALS LTD VS. COMMISSIONER QUILON MUNICIPALITY [LAWS(KER)-1964-9-32] [REFERRED TO]


JUDGEMENT

- (1.)IN this writ petition Mr. P. K. Kurien, learned counsel for the petitioner company challenges the assessment made to profession tax under the Travancore District Municipalities Act 1116 (Act XXIII of 1116) for the two half-years in 1958-59. The actual order of assessment itself is Ext. E dated 27-4-62.
(2.)BEFORE I advert to the correspondence that passed between the petitioner company and the respondent in these proceedings, namely the Commissioner, Quilon Municipality, before the passing of the order Ext. E, it is necessary to refer to the assessment order made in respect of the identical period by the same assessing authority and which was the subject of attack before me at the instance of the petitioner company in O. P. No. 982 of 1960. It will be seen that the judgment in that writ petition was rendered by me on 31st January 1962. It is also seen that my judgment was under attack before a Division Bench of this court in Writ Appeal No. 84 of 1962; and My Lord the Chief Justice and Madhavan nair, J. , who heard the writ appeal, by their judgment dated 29th August 1963, confirmed my decision in O. P. 982 of 1960. No doubt the judgment in the writ appeal was rendered only on 29th August 1963; and the order of assessment in these proceedings was passed, in pursuance of notice issued as per the direction given by me in O. P. 982/60, before the judgment in the writ appeal itself was rendered by this court.
In the previous proceedings, it will be seen, that the commissioner took up the position that an assessment in respect of the petitioner to profession tax will have to be made under R. 18 (1) of the Taxation and Finance Rules in Schedule II of the Travancore District Municipalities Act. A further contention was taken by the Commissioner that an assessment can be made under the proviso which originally existed to R. 18 (2) of the Taxation and finance Rules occurring again in Schedule II. Another contention was also taken by the Commissioner in those proceedings to the effect that the entire transactions which were taken into account for the purpose of making the assessment to profession tax in those proceedings, must be deemed to have taken place in quilon itself because, that is the only place where the petitioner company has the principal and controlling office in the Indian Union. All these aspects have been dealt with by me in my judgment in O. P. 982 of 1960.

Ultimately it will be seen, that notwithstanding the fact that a contention was taken by Mr. P. K. Kurien, learned counsel appearing for the same petitioner in O. P. 982/60 that R. 17 of the Taxation and Finance rules occurring in Schedule II of the Travancore District Municipalities Act must be considered to go far beyond the terms of S. 91 of that Act, that contention was not accepted by me. The exact scope of R. 17 was also laid down by me in the previous judgment. I also rejected the contention that was taken by the Municipal Commissioner that he has jurisdiction to make an assessment to profession tax on the basis of R. 18 (1) of the Taxation and Finance Rules. Ultimately I held that the position was that inasmuch as the petitioner company must be considered to be one transacting business partly within the area of the quilon Municipal Council, and partly outside, the proper rule applicable is r. 18 (2) of the Taxation and Finance Rules, in Schedule II of the Travancore district Municipalities Act. The contention that in as much as the office of the petitioner company at Quilon must be considered to practically control the various transactions in relation to the business conducted by the company and therefore in consequence it must be considered that the entire transactions should be deemed to have to taken place in Quilon itself, was also not accepted by me. It was really after a consideration of all these aspects and after indicating my opinion in respect of the various matters referred to above, that i ultimately directed the Commissioner of the Quilon Municipality to take up the question of making a fresh assessment, in the light of the directions contained in that judgment. As to what exactly was the turnover of business, if any, transacted, by the petitioner company within the area of the Quilon municipal Council, was a matter, which was directed by me, to be taken up & investigated by the authority concerned for the purpose of making a proper order of assessment, if ultimately the petitioner company was liable for payment of profession tax.

(3.)IN consequence of the decision rendered by me on 31st january 1962 in O. P. No. 982/60, it is seen that the Commissioner of the Quilon municipality issued the notice Ext. A dated 7th March 1962. IN the said notice, the Commissioner refers to the judgment of this Court in O. P. 982/60; and states that an appeal is being filed from that decision, but subject to that, the Commissioner is bound to start fresh assessment proceedings in compliance with the judgment in O. P. 982/60. The Commissioner also adverts in the notice ext. A, to the actual decision in O. P. 982/60 to the effect that the petitioner company is to be taxed under R. 18 (2) without the proviso thereof. On this basis, the Commissioner makes a request to the petitioner company to furnish him with the figures which would be helpful to fix the aggregate money value of goods purchased or sold by the company or of any other business "transacted by the company within the Municipal area during each half year of 1958-59. " there is also a further statement in Ext. A to the effect that if the petitioner company proposes to take up the position that "it is not transacting any business within the Municipal area", then the company will have to give the aggregate money value of the goods purchased or sold in INdia by the company during the said period, namely 1958-59, with necessary evidence to substantiate the same.
Pausing here, it will be seen that in Ext. A the commissioner specifically asked the petitioner company to furnish him with the "aggregate money value of goods purchased or sold by the company within the Municipal area"; and the Commissioner also asked the petitioner company to furnish him with information regarding "the aggregate money value of any other business transacted by the company within the Municipal area" during each of the half years in 1958-59. This information asked for by the Commissioner under Ext. A is, in my view, strictly in compliance with the provisions of R. 18 (3) of the Taxation and Finance Rules in Schedule II of the Travancore District Municipalities Act. No doubt, in the last Paragraph of ext. A, the Commissioner himself anticipates that the petitioner company may take up the position that "it is not transacting any business within the municipal area"; and in that contingency, the Commissioner requests the petitioner company to give the aggregate money value of the goods purchased or sold in India by the company during the said period. No doubt, according to Mr. P. K. Kurien, learned counsel for the petitioner, this information called for by the Commissioner is totally irrelevant and beside the point, and opposed to r. 18 (2) read with R. 18 (3 ). On the other hand, the stand taken by Mr. V. K. K. Menon, learned counsel appearing for the respondent, Municipal Commissioner, is that this information is absolutely necessary for the purpose of making a proper assessment as against the petitioner company in accordance with the decision rendered in O. P. 982/60. It may also be indicated at this stage, that according to Mr. P. K. Kurien, learned counsel for the petitioner, the actual order of assessment evidenced by Ext. E, clearly ignores the various principles laid down and directions given in the previous judgment in O. P. 982/60.

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