TMI Blog1970 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... NT 1. The Municipality of Mal-kapur recovered from the appellants Rs. 6,980/2/- as "Bale and Boja tax" for three years 1950-51, 1951-52 and 1952-58 in respect of cotton ginned in their factory. The appellants filed a suit in the Court of Civil Judge, Class I, Khamgaon, for an order permanently restraining the Municipality from recovering the "Bale and Boja" tax for the season 1953-54 and for subsequent seasons and for a decree refunding the amount paid and interest thereon. 2. The appellants contended that the levy of the "Bale and Boja" tax was ultra vires the Municipality. The Trial Court decreed the claim for injunction and also awarded the amount claimed less Rupees 750/-. In appeal, the District Court held that the levy of tax at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit does not lie, we are constrained to hold that under the Act the suit is incompetent. The High Court accordingly set aside the decree in favour of the appellants for refund of tax and confirmed the injunction restraining the Municipality from recovering the tax. With certificate granted by the High Court under Article 133(1)(c) of the Constitution this appeal has been preferred. 3. Two questions fall to be determined in this appeal (I) whether a suit for refund of tax paid to the Municipality is maintainable; and (2) if the suit is maintainable, whether the levy of tax by the Municipality was valid in law. 4. The first question is concluded by the judgment of this Court in Bharat Kala Bhandar's case, 1965-3 SCR 499. That case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to entertain the suit, for the liability to pay terminal tax was created by the Act and a remedy was also provided against improper enforcement of the Act. In a case where the Municipality has undoubted power to levy a tax under a provision of the Act, in respect of any article, and it levies tax under another provision of the Act not applicable to it, the Municipality merely commits an error in collecting the tax at the rate collected, and no question of jurisdiction arises, the party aggrieved must seek remedy in the manner prescribed by the Act. In the present case, however, there is a bar against levy in excess of the amount specified in the Constitution, and not a mere question of levy of tax under an inapplicable entry. 6. Again i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Berar being then not a. part of British India. By a notification of the. 'Governor-General dated June 22, 1924, under the Indian (Foreign Jurisdiction) Order in Council the Berar Municipal Act was repealed, and the Central Provinces Municipalities Act 2 of 1922 was applied to the Berar Area. After the Government of India Act, 1935, the Berar Laws (Provincial) Act, 1941 was enacted, and Berar was under Section 47 of the Government of India Act to be administered together with the Central Provinces as one of the Provinces under that Act. Various Acts" including the Central Provinces Municipalities Act 2 of 1922 were extended to the Berar with certain modifications under the Central. Provinces and Berar Act 15 of 1941. By that Act the titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere to remain in operation until provision to the contrary was made by the Parliament. To give effect to the limitation imposed by Section 142-A the Parliament enacted the Professions Tax Limitation Act XX of 1941. The relevant provisions of Act 20 of 1941 are as follows: Section 2 - Notwithstanding the provisions of any law for the time being in force, any taxes payable in respect of any one person to a Province., or to any one municipality, district board, local board? or other local authority in any Province, by way of tax on professions, trades, callings or employments, shall from and after the commencement of this Act cease to be levied to the extent in which such taxes exceed fifty rupees per annum. Section 3- The provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only notification In force was the notification issued in 1912. The notification of 1940 was not saved by the proviso to Section 142-A of the Government of India Act, 1935. But the Municipality collected tax at rates set out in the notification of .1940. It is clear, however, that if the notification of 1940 was ineffective under the Government of India Act, it could not be revived under the Constitution Article 276(2) proviso. The notification relied upon by the Municipality was brought into operation after the Constitutional prohibition under Section 142-A of the Government of India Act became effective on April 1, 1939. The modification of rates was plainly ineffective, for the rates prescribed thereby were not in operation in the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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