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TMI Blog1970 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ereon. 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 the rate prevailing on March 31, 1939, was saved by the provisions of Section 142-A(2) of the Government of India Act, 1935, and the Municipality was competent to levy tax at that rate. The District Court on that view modified the decree and held that the Municipality was entitled to retain Rupees 1,867/4/-. In second appeal to the High Court of Bombay at Nagpur, the following question was referred to a Full Bench: Whether in respect of the recoveries, which are in contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 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 arose under the C.F. & Berar Municipalities Act, 1922. The right of a Municipality governed by that Act to levy under Section 66(1)(b) a tax on bales of cotton ginned at the prescribed rate was challenged by a taxpayer. This Court held that levy of tax on cotton ginned by the taxpayer in excess of the amount prescribed by Article 276 of the Constitution was invalid, and since the Municipality had no authority to levy the tax in excess of the rate permitted by the Constitution, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it was implicit in the judgment of the Full Bench that the suit was maintainable. If the suit was not maintainable the question whether to the claim made under Section 48 of the Act had application could not arise. Section 48 lays down the conditions subject to which the suit may be filed. Whether Section 48 of the C.P. & Berar Municipalities Act is not applicable, because the tax contravened Section 142-A of the Government of India Act, 1935, or Article 276 of the Constitution, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 title of Act 2 of 1922 was altered: it read "Central Provinces and Berar Municipalities Act"., By Section 8 of the Act it was provided that the Central Provinces Municipalities Act, 1922, which had been applied to Berar by order under the Indian (Foreign Jurisdiction) Order in Council, 1902, shall cease to have effect "provided that all appointments, delegations, notifications, orders, byelaws, rules and regulations which have been made or issued, or deemed to have been made or issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal 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 Section 2 shall not apply to any tax specified in the Schedule. The Schedule is as follows: THE SCHEDULE Taxes to which Section 2 does not apply. 1. The tax on professions, trades and callings, imposed through fees for annual licences, under Chapter XII of the Calcutta Municipal Act, 1928. 2. The tax on trades, professions and callings, imposed under Clause (f) of Sub-sections (1) of Section 123 of the Bengal Municipal Act, 1932. 3. The tax on trades and callings carried on within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 financial year ending March 31, 1939. 11. No claim to recover the tax could therefore, be founded on that notification. But it was urged that the earlier notification of 1912 was in any case effective in the financial year ending March 31, 1939, and tax could be levied under that notification which was indisputably in operation in the financial year. This Court has however held in Municipal Committee, Akot v. Manilal Manekji Pvt Ltd. 1967-2 SCR 100 : ; on interpretation of Sections 2 and 3 and Ite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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