Decided on October 22,1968

White Jews Synagogue, Mattancherry Appellant


T.C.RAGHAVAN,J. - (1.) THE Mattancherry Municipality(now the Corporation of Cochin)proposed to assess the petitioners,the White Jews Synagogue(the second petitioner being a tenant of the first petitioner,the Synagogue ),to property tax for section Nos.471,692 and 156.Later on,the proposal regarding the latter two survey numbers was dropped and the tax was confined to 20 cents in section No.471 leaving 8 cents therein also.The capital value of the land was proposed at Rs.500 per cent,which again was reduced on representa­tion to Rs.400 per cent.Thus,the petition is confined to the tax on 20 cents in section No.471,which is not agri­cultural land,nor land occupied by,or adjacent and appurtenant to,a building.
(2.) TWO contentions are urged by Mr.S.Boothalingam Iyer,the counsel of the petitioners.The first is that section 99(3)of the Kerala Municipalities Act of 1960 as amended by the Kerala Municipalities(Amendment)Act of 1963 is ultra vires the powers of the State Legislature,because the subject legislated upon is covered by Entry 86 in List I,the Union List,in the Seventh Schedule of the Constitution and not covered by Entry 49 of List II,the State List.Entry 86 of the Union List reads: "Taxes on the capital value of the assets,exclusive of agricultural land,of individuals and companies:taxes on the capital of companies "; and Entry 49 of the State List reads: "Taxes on lands and buildings " ;.
(3.) IN another connection,this question came to be con­sidered by a Division Bench of this Court in Mammad Keyi v. Wealth Tax Officer,Calicut 1961 K.L.T.905 .That case arose under the Wealth Tax Act;and in considering a similar contention,the Division Bench held that there was no conflict or overlapping between the two entries mentioned above.Entry 86 in List I contemplates a tax on the capital value of the assets of a person or company exclusive of agricultural lands,which means that the subject of taxation therein is the capital value of the entire assets,within which will be included all lands excepting agricultural lands.In other words,the taxation is on the total assets of an individual or company;and in fixing the value of the totality of the assets,the value of the lands,less the charges or encumbra­nces thereon,which form part of the assets will also be taken into account.Whereas,Entry 49 in List II contemplates a tax on lands and buildings "lands generally,irrespective of the fact that they are agricultural or otherwise "as a unit.In the latter case,the tax is on the lands and the buildings as a unit,whereas a tax of the former kind is on the total assets and not on the component parts of the totality of the assets.It may be that in both cases,ultimately,the impost falls on the owner of the lands and the buildings:all the same,the fields of taxation are quite different and the one does not overlap the other. The decision of the Supreme Court in Patel Gordhandas Hargovindas v. The Municipal Commissioner;Ahmedabad A . I .R.1963 S.C.1742 ,has been brought to my notice.In that case the decision of the Bombay High Court in Municipal Commissioner,the Municipal Corporation of the City of Ahmedabad v. Gordhandas Hargovindas A.I.R.1954 Bombay 138 was reversed by the Supreme Court.The Bombay High Court was considering the Bombay Municipal Boroughs Act of 1925,more specially sections 73 and 75 of the Act,and rule 358 read with rule 243 framed under the Act.The rules based the rate of the "rate "on the capital value of the land;and the Bombay High Court held that the rule was not ultra vires section 73 of the Act.The Supreme Court considered the history of the meaning of the word "rate "in legislations in England and in India and held that the term had acquired a special meaning that it was a tax on the annual value of lands and buildings fixed in one of the three modes of valuation based on(1)actual rent fetched by the,lands or the buildings where they were actually let out,( 2)where they were not let out,rent based on a hypothetical tenancy,particularly in the case of buildings,and(3)where either of these two modes was not available,by valuation based on capital value from which annual value had to be found by applying a suitable percentage which might not be the same for lands and buildings.In view of this special meaning of the word ''rate '' ;,the Supreme Court further held that the relevant rule "which made the capital value as the basis of the rate(a percentage of the capital value)was ultra vires the Act.;

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