TMI Blog1971 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... their business under the order of assessment passed by respondent No. 2, Kar Adhikari, Zila Parishad Muzaffarnagar for the year 1967-68. As they did not produce their accounts for their business in khandsari the Kar Adhikari, an officer appointed by the Zila Parishad of Muzaffarnagar assessed them to ₹ 2,000/-as Circumstances and Property tax on the estimated income of ₹ 96,000/-from their property and business for the year. 3. To appreciate how the Zila Parishad (a district authority) came to have the power to levy the tax, it is necessary to take an account of some past legislation. The Local body to administer the district of Muzaffarnagar in U.P. until the year 1958 was the District Board of Muzaffarnagar constituted under the U.P. District Boards Act, 1922 (U.P. Act X of 1922). Chapter VI of the Act containing Sections 108 to 132 gave the Board certain powers of taxation, local rates etc. and prescribed the procedure for imposition and recovery of the levy. Under Section 114 the Board had the power to impose a tax on circumstances and property subject to certain conditions, inter alia, that the tax could be imposed only on persons residing or carrying on bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect inter alia of matters mentioned in Section 123. 4. On the 1st of March 1928, the U.P. Local Self Government issued a notification prescribing rules for the assessment and collection of a tax on circumstances and property in the rural area of the Muzaffarnagar District under Section 172 of the Act after the previous publication thereof as required by Section 176. Rule 3 provided that the tax shall be assessed by an assessing officer appointed by the District Board with the help of the members of the circle concerned . Rules 4 and 5 laid down a time schedule for the work of the assessing officer and the submission of the list of persons within the district who appeared to be liable to pay the tax to the board. He was first required to prepare a list on or before 15th December of each year of all persons who appeared to him to be so liable. He was then to consider the circumstances and property of every person entered in the list and to determine the amount of the tax to which such person should be assessed. The name of every person assessed and the amount of tax to which he was assessed was to be entered in an assessment list in the form attached to the rules and was to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of taxes on professions, trades, callings and employments shall not, after the thirty-first day of March nineteen hundred and thirty-nine, exceed fifty rupees per annum: Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the contrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum), as may for the time being fixed by a law of the Federal Legislature; and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities. (3) The fact that the Provincial Legislature has power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of ₹ 50. The situation was however altered in 1949 when the Professions Tax Limitation (Amendment and Validation) Act, 1949 was passed with the assent of the Governor-General on 26th December 1949 (Act LXI of 1949). This was really to get over the decision of the Allahabad High Court in District Board of Farrukhabad v. Prag Dutt I.L.R. [1949] All 26. The Act was passed to amend the Professions Tax Limitation Act, 1941 and to validate the imposition in the United Provinces of certain taxes on circumstances and property. Section 2 of the Act purported, to add items 3-A and 3-B in the Schedule to the Professions Tax Limitation Act, 1941 with retrospective effect. Items 3-A and 3-B read as follows:- 3-A. The tax on inhabitants assessed according to their circumstances and property, imposed under Clause (ix) of Sub-section (1) of Section 128 of the United Provinces Municipalities Act, 1916 (U.P. Act II of 1916). 3-B. The tax on persons assessed according to their circumstances and property, imposed under Clause (b) of Section 108 of the United Provinces District Boards Act. 1922 (U.P. Act X of 1922). The usual clauses for validation with retrospective effect were contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is under the new Act (XXXIII of 1961) was completed and as from the date on which the U.P. Antarim Zila Parishad Act was to stand repealed in relation to that district. The Kshettra Samitis and Zila Parishad were constituted in the District of Muzffarnagar under the Act. This Act was a comprehensive Act which prescribed inter alia for dividing all the rural areas of each district into khands, the establishment of Kshettra Samithis for each khand, their composition and establishment and incorporation of Zila Parishads. Each Zila Parishad was to be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and to discharge its functions under the Act. The powers and functions of Kshettra Samitis and Zila Parishads were specified in Chapter III of the Act. Chapter IV of the Act containing Sections 39 to 55 laid down provisions for the appointment of officers and servants of the Zila Parishads. Under Section 43(1) appointments to the posts of Karya Adhikari, Abhiyanta and Kar Adhikari and the posts created under Sub-section (2) of Section 39 carrying an initial salary of ₹ 200 or more per month were to be made by the Parisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd properties in accordance with Section 114 and inasmuch as the tax had been reduced to ₹ 50 by the Central Act of 1941 the validation under the Professions Tax Limitation (Amendment and Validation) Act, 1949 would not serve to raise the limit of tax to beyond ₹ 50 per annum. In our view, none of these contentions have any force. 13. On the first branch of his submission, counsel relied on a passage in Craies on Statute Law (sixth edition, page 283) reading: If a power is given to the Crown by statute for the purpose of enabling something to be done which is beyond the scope of the royal prerogative, it is said to be an important Constitutional principle that such a power, having been once exercised, is exhausted and cannot be exercised again. It was said that the effect of Sub-section (2) read with the proviso to Section 142-A of the Government of India Act was that although a tax in respect of professions, trades and callings might have been leviable after the 31st March 1939 if it was being levied before, the power of the Federal Legislature having been once exercised to reduce the imposts over ₹ 50/-per annum to that sum, it was exhausted and could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court observed that the notification of 1940 was not saved by the proviso to Section 142-A but the municipality collected tax at the rates set out in the said notification. Accordingly the Court held that if the notification of 1940 was ineffective under the Government of India Act, 1935 it could not be revived under the Constitution by virtue of Article 276(2) proviso. 15. Clearly, that case is distinguishable from the facts of the case before us. In this case the impost remained the same between the passing of the Government of India Act, 1935 and the commencement of the Constitution. The amendment of Section 108 of the U.P. District Boards Act of 1922 in 1948 only allowed the continuance of the tax already imposed on persons assessed according to their circumstances and property. We cannot accept the argument that validation of the imposition of a tax by the Professions Tax Limitation (Validation and Amendment) Act 1949 with retrospective effect was not possible. An argument similar to that raised by the counsel for the petitioners was raised and negatived in M.P.V. Sundararamier Co. v. The State of Andhra Pradesh [1958]1SCR1422 . There it was contended on behalf of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers had disappeared. 17. The next argument of counsel that the time schedule mentioned in Rules 4 and 5 in the notification of January 28 not having been adhered to, the assessment was illegal, must be rejected on the face of it. These rules laying down certain dates by which the work was directed to be taken in hand and completed were merely directory and not mandatory. There was nothing in these rules to suggest that if the dates were not strictly observed any prejudice would be caused to the assessee. We find ourselves unable to accept the observations to the contrary in a judgment of the Allahabad High Court dated 8th January 1963 rendered in Civil Miscellaneous Writ Petition No. 3160 of 1962 to which reference was made in this connection. 18. In paragraph 21 of the petition, a complaint is made that the Zila Parishad had changed the rate of tax to 3 paise per rupee which is equivalent to 6 pies (old) per rupee being the rate which was in force under the District Boards Act and the minimum amount on income for levy of tax had also been raised under the Zila Parishad Act to ₹ 600 from ₹ 300 under the District Boards Act. It is pointed out in the counter affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of appointment of persons to be and the posting and promotion of District Judges in the State of Bihar which under Article 233(1) of the Constitution were to be made by the Governor of the State in consultation with the High Court. It appeared that there was some difference of opinion between the High Court and the Government of Bihar with regard to certain appointments and promotions of District Judges in the State of Bihar and the Government issued a notification on 17th October 1968 appointing the petitioner as temporary District and Sessions Judge Singhbhum until the appointment of a permanent officer in the vacancy caused by the retirement of an incumbent to that office. This Court found that before issuing the said notification the Government never attempted to ascertain the views of the High Court with regard to the petitioner's claim or gave the High Court any indication of its views with regard thereto. It was observed that (p. 674): The Governor cannot discharge his functions under Article 233 if he makes an appointment of a person without ascertaining the High Court's views in regard thereto... Consultation or deliberation is not complete or effective b ..... 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