PATEL,J. - (1.) This Second Appeal raises a question of some importance in relation to the 'profession tax' imposed by Municipal Committee, Malkapur, the appellant before us.
(2.) THE facts relevant for the decision of the appeal are as below. The Municipal Committee was originally governed by the Berar Municipal Law, 1886. Under the powers vested in it under the law to impose a tax on persons carrying on any profession or art or trade within the limits of the Municipal Committee, it levied certain taxes. In respect of trade of ginning and pressing cotton, notification No, 243, dated March 21, 1912, was as below: No. 243 : -With reference to Section 44, Sub -sections (7) and (8) of the Berar Municipal Law, 1886, it is hereby notified that the Municipal Committee of Malkapur, in the Buldana district, has with the sanction of the Chief Commissioner, directed the imposition, with effect from the 1st August 1912, of a tax on the ginning and pressing of cotton under Section 41(A)(b) of the said Law, to be levied from all persons carrying on, within the limits of the Malkapur Municipality, the trade of ginning cotton or pressing the same into bales by means of steam or mechanical process, at the following rates : - (1) for each Boja of ten maunds ginned ... ... ... ... 8 Pies.(2) for each bale of 14 maunds pressed ... ... ... ... 10The tax is payable in one instalment on the 1st August each year. This notification was superseded by the following notification under the C. P. and Berar Municipalities Act, 1922: No. 11 -3924 -M -XIII : -In exercise of the powers conferred by Sub -section (5) of Section 67 of the C.P. Municipalities Act, 1922 (C.P. Act II of 1922) as applied to Berav, the Governor of the Central Provinces and Berar is pleased to confirm the following schedule of rates toy Municipal, Committee, Malkapur in the Buldana district under Clause (b) of Sub -section (1) of Section 66 of the said Act for the imposition of the tax on persons carrying on the trade of ginning and pressing cotton by means of steam or mechanical process within its limits in supersession of the one sanctioned under Control Provinces Gazette notification No. 243 dated the 21st March 1912, The revised schedule shall come into force from the 1st October 1939 :(i) -For each Boja of 14 maunds or 392 lbs ginned ... ... ... 2 annas.(ii) For each Bale of 14'maunds or 392 lbs pressed ... ... ... 2 annas. This notification was made on January 2, 1940.
(3.) THE plaintiffs are the owners of a partnership firm named 'Mathuradas Mannalal of Malkapur' doing ginning and pressing business in Malkapur. They paid the tax for the years 1950 -51 to 1952 -53, totalling a sum of Rs. 6,509 -2 -0. Thereafter they instituted the present suit for recovery of the whole amount from the Municipal Committee on the ground that the levy of the tax was ultra vires and that no amount could be recovered by the Municipal Committee from them as it contravened the provisions of Section 142A of the Government of India Act, 1935, as then prevailing, and later the provisions of Article 276 of the Constitution, which prescribed the maximum limit of Rs. 250 for professional tax. The plaintiffs also claimed interest on the tax illegally recovered from them.;