TMI Blog1933 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... were voluntary and could not be recovered back. On the liability of the respondent to the profession tax the District Munsif held that the respondent was liable under Section 93, District Municipalities Act, 1920, read with Rule 18, Schedule 4 thereto. 2. On the second, as to the character of the payments he held that they were not voluntary. Therefore he dismissed the suit. The respondent appealed to the learned Subordinate Judge of Tuticorin who held on the first point that the respondent is not liable to the profession tax sued for but did not deal with the second point at all, that is, the nature of the payment. He gave a decree therefore for the sum sued for with costs. On this appeal both the points have been argued. 3. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be rejected under the law as it stood before the Act of 1920, and that the effect of re-arranging and remodelling the sections in 1920 was probably the opposite of what was intended, viz., to make it impossible for Municipalities to levy profession tax from persons carrying on business except when the principal office or place of employment was within their own jurisdiction. This view was upheld on appeal by a Bench and that being so, it is clear that the appeal must fail unless the appellant can show that the principal place of business or office of the respondent is within the Tuticorin Municipality. In my opinion the evidence does not show that Tuticorin is the principal office of the respondent. The respondent is a firm of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principal office which is set in authority over Tuticorin. The section does not say, principal office within the Presidency or even within India. I am therefore not in a position to say that the Subordinate Judge is wrong when he says, although I do not agree with all the grounds for his opinion, that in the nature of the evidence the respondent firm has not got its principal office at Tuticorin, The consequence of this is that the appellant was not entitled to levy profession, tax in the half years during which the firm paid it. 6. The second point remains and it is whether the payments now sought to be returned were voluntary or involuntary. The District Munsif found that they were involuntary but according to his view on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. A number of cases on this question have been cited to me. There is no case which goes to the length of saying that where a statutory body conceiving itself justified under the circumstances in making a demand makes a demand in the form prescribed for such demand, the demand containing the warning that if it is not satisfied, legal process for realisation will be put into force; the payment in pursuance of such notice is sufficient to take it out of the category of voluntary payments. 8. The cases only go so far as to show that to make the payment involuntary or one under duress it must in fact be so. It is not necessary that the protest should be express nor on the other hand does the fact of verbal protest always mean that the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing. If that were so no payment of rent to a landlord would be a voluntary payment. 9. The circumstances were that a water rate had been levied which was in excess by 1-11-6. Although the local authority had no power of distress they had the power to cut off water supply on non-payment of the rent and the argument was that although the payment was made without any protest yet it must be deemed to have been made under protest or under duress because of the fear that water might be cut off. This was repelled. The case is different where goods have been illegally seized and a person has to make the payment to get them released or where a person is entitled to certain services or to get a particular thing done and cannot get these services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal without any doubt and the third with some hesitation concurred in the opinion that the plaintiff never intended to depart and never did depart from the course taken by him at the commencement of the dispute. 10. In other words his persistence during so long a period rather shows that the plaintiff did not acquiesce in the defendant's demands. Broaklebank v. The King (1925) 1 K.B. 52 was a case where the Shipping Controller acting under the defence of the Realm Regulations required the suppliants to pay as a condition of allowing them to sell one of their ships to a foreign firm a sum of money which he had no right to demand. On this imposition being held to be illegal, the question arose whether it was a voluntary paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
