03 March 1964
Supreme Court
Download

C. RAJAGOPALACHARI Vs CORPORATION OF MADRAS

Bench: SINHA, BHUVNESHWAR P.(CJ),WANCHOO, K.N.,SHAH, J.C.,AYYANGAR, N. RAJAGOPALA,SIKRI, S.M.
Case number: Appeal (civil) 580 of 1962


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: C.   RAJAGOPALACHARI

       Vs.

RESPONDENT: CORPORATION OF MADRAS

DATE OF JUDGMENT: 03/03/1964

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1964 AIR 1172            1964 SCR  (6) 962

ACT: City  Municipality Act 1919 (Act No. 4 of 1919), s.  111(b), Government  of  India Act, 1935, ss. 142A(1),  143(2),  292, Constitution  of India, Art. 277-Drawing pension-If  amounts to  employment  or  profession within the  meaning  of  Act- Whether taxable.

HEADNOTE: The  appellant held office as the last  Governor-General  of India.   He  has  been drawing Rs.  15,000/-  per  annum  as pension   while  residing  in  the  city  of  Madras.    The Corporation of Madras demanded profession tax from him under section  111(i)(b) of the City Municipal Act, 1919  for  the year  1958-59  on the ground of his residence  being  within Madras  city  and his drawing the pension to  which  he  was entitled.   The appellant addressed a communication  to  the Corporation  asserting that this demand was illegal  as  the Corporation  was  empowered by the  relevant  constitutional provisions  merely  to levy a tax "on  a  profession,  trade calling or employment" and that as he as a pensioner did not fall  under  any  of  these classes,  the  said  demand  was illegal.   The Corporation did not accept the contention  of the  appellant  and therefore, the appellant  filed  a  writ petition under Art. 226 of the Constitution before the  High Court.   The High Court dismissed the writ petition  of  the appellant. The High Court granted a certificate under Art.133(1)(c ) of  the Constitution to the appellant to file on  appeal  to the Supreme Court. Hence the appeal. The    question before the Supreme  Court   was whetherthe Corporation    was  entitled to levy a tax on pensioners  in respect of thepensions received by them in Madras City. Held:(1)  that the power of the Corporation to levy the  tax is  dependent  on the subject of the tax  being  within  the State Legislative power under the Constitution.  The present levy  comes within the purview of item 60 in the State  list in  Schedule  VIII  of  the  Constitution,  which  reads  as follows:-

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

"Taxes on profession, trades, callings and employments." Being a "pensioner" cannot be a "profession, trade, business or  calling", nor could a tax on a person because he  is  in receipt  of a pension be said to be a tax on  ’employments". The tax, therefore, under the last portion of sec. 111(1)(b) reading-profession tax on persons "in receipt of any pension or  income from investments"-is nothing but a tax on  income falling within Entry 82 of the Union List.  963 The taxes specified in item 60 are taxes on the carrying  on of  a  profession, trade etc., and would,  therefore,  apply only  to  a case of present C.’ employment.  The  mere  fact that a person has previously been in a profession or carried on  trade etc. cannot justify a tax under this  entry.   The tax  on  the  receipt  of pension  or  on  the  income  from investments  which is referred to in the last part  of  sec. 111(1) is in truth and substance a taxon  income.  At  the time the tax is levied the appellant-pen-sioner is inno employment but is only in receipt of income. (ii) The present levy of tax cannot be saved by Art. 277  of the  Constitution because the tax was a new levy and  not  a continuance  of  a tax which had been levied just  prior  to April  1, 1937.  On the facts of this case it was held  that if  the  statutory  charge  to  profession  tax  imposed  on pensioners  by  the Act of 1919, was lifted by  the  Act  of 1936, and the tax again came into operation only on April 1, 1937,  it would follow that there was no "levy of  the  tax’ immediately  before  the  commencement of Part  III  of  the Government of India Act. 1935. so as to bring it within  the saving  in  s.  143(2)  of  that  Act.   Besides,  the   two circumstances,  viz., that residence within the city  for  a specified  period was made a condition of the  liability  to the  tax,  as well as the increase in the rates  would  both serve  to  emphasise  that the levy was a new  one,  with  a different  texture and not a continuation of the  tax  which was leved just prior to April 1, 1937. (iii)The  mere fact that prior to 1st April,  1937  the Corporation had under Act of 1936 the power to bring the tax into force by a resolution does not on a proper construction of  s.  143(2) bring it within the range of those  taxes  or duties  which  "were  being lawfully levied"  prior  to  the commencement  of  Part III of the Government  of  India  Act 1935, which alone are permitted to be continued to be levied notwithstanding  that  these  duties  were  in  the  Federal Legislative List.  The mere existence of a power to bring  a tax into operation, cannot be equated with "a tax which  was being lawfully levied" before Part III of the Government  of India Act, 1935. The  High  Court  erred  in  holding  that  s.  292  of  the Government of India Act applies to this case. The Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote,  [1964] 6 S.C.R. 947, South India  Corporation  (P) Ltd.  V. The Secretary, Board of Revenue, Trivandrum, A.I.R. 1964 S.C. 207, relied on. (iv)Under  s.  111(1) as amended, the tax could  be  levied only  in  accordance with the rules in Schedule  IV  and  as those  rules did not make a provision for the levy of a  tax on  pensioners, it would follow that the tax "was not  being lawfully  levied" on them.  The High Court erred in  holding that  such  defect would be removed by s. 18 of  the  Madras General Clauses Act. (v)S. 142-A(1) of the Government of India Act, 1935  would assist  the respondent’s case only if tax imposed were on  a profession,  trade, calling or employment.  In  the  present case, the tax is being imposed

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

664 on  an income of a pensioner and so this   provision  has no application.  It  is not the  intention of  Parliament  that State  might levy a tax on income and call  it  "profession" tax.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 580 of  1962. Appeal  from the judgment and decree dated May 1,  1961,  of the Madras High Court in Writ Petition No. 975 of 1959. R.M. Seshadri. and R. Gopalakrishnan, for the appellant. R.   Ganapathy lyer, for respondent No. 1. A.   Ranganadham Chetty and A. V. Rangam, for respondent No. 2. March 3, 1964.  The Judgment of the Court was delivered by AYYANGAR,  J.-This  appeal comes before us by  virtue  of  a certificate  of fitness granted by the High Court of  Madras under  Art.  133(1)(c)  of  the  Constitution  against   its judgment dismissing a petition filed by the appellant  under Art.  226 of the Constitution seeking a writ of  prohibition against   the   Corporation  of   Madras   challenging   the constitutional validity. of a notice requiring the appellant to pay profession tax. The  appellant held office as the last  Governor-General  of India.  Under s. 3 of Central Act XXX of 1951 the  appellant is  entitled to a pension of Rs. 15,000/- per annum and  has been  drawing this sum residing in the city of Madras.   The Corporation   of  Madras-the  first  respondent  before   us demanded   profession  tax  from  the  appellant  under   s. 111(1)(b) of the City Municipal Act, 1919 hereinafter called the  Act  for  the  year 1958-1959  on  the  ground  of  the appellant’s residence within the city for the period therein specified  and  his  drawing the pension  to  which  he  was entitled.   The appellant addressed a communication  to  the Corporation  asserting that this demand was illegal  as  the Corporation  was  empowered by the  relevant  constitutional provisions merely to levy a tax "on a profession,  965 trade, calling or employment" and that as he as a  pensioner did not fall under any of these classes, the said demand was illegal.   The  authorities  of  the  Corporation,  however, insisted  on compliance with the demand on the  ground  that under  the  express terms of the Act persons in  receipt  of pensions  were  also  liable  to  the  tax.   The  appellant thereupon  filed a writ petition for the relief already  set out,  and  as  the validity of the State  Act  was  impugned impleaded the State of Madras also as a respondent. It  would be seen from the foregoing that -the question  for consideration  is whether the 1st respondent Corporation  is entitled  to  levy  a tax on pensioners in  respect  of  the pensions  received  by  them.  In order  to  appreciate  the submissions made to us by learned Counsel for the  appellant it  would  be  necessary  to set  out  the  history  of  the legislation  in relation to profession tax and the  impugned tax on persons in receipt of pensions applicable to the City of  Madras  because  it  is  on  a  construction  of   these provisions  that the learned Judges of the High  Court  have upheld   the  validity  of  the  levy  and   dismissed   the appellant’s  writ  petition.   For this purpose  it  is  not necessary to travel to any period anterior to the  enactment of  the  Madras City Municipal Act (Madras Act IV  of  1919) which with certain amendments to be referred to presently is still in force.  The Act received the assent of the Governor

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

on March 26, 1919, of the Governor-General in June, 1919 and came  into force-on publication in the Gazette which was  in the same month.  Having been enacted while the powers of the Local Legislatures were governed by the Government of  India Act, 1915, the constitutional validity of the legislation is not open to any challenge.  Section 111(1 of this  enactment ran               "Every  person not liable for  the  companies’               tax.  who, within the city and for the  period               prescribed   in   Sec.   113,   exercises    a               profession, art, trade or calling or holds  an               appointment,  public or private, bringing  him               within  one or more of the classes of  persons               specified  in the taxation rules  in  Schedule               IV-  shall  pay by way of licence fee  and  in               addition to any other licence fee 966               that  may be leviable under this Act a tax  as               determined under the said rules but in no case               exceeding rupees five hundred in the half year               and   such  tax  may  be  described   as   the               profession tax."               The Section had two explanations of which  the               second is material and this reads:               Explanation 2               "A  person in receipt of a pension  paid  from               any  source  shall be deemed to  be  a  person               holding  an appointment within the meaning  of               this section.’ The  next change in the relevant provision was  effected  by Madras City Municipal Amendment Act, 193,6 (Madras Act X  of 1936)  which  came into force on 14th April 1936.   By  this amendment a new section-s.  III was substituted ,for the old one just set out, and under this Explanation (2) was deleted and the substituted provision ran :               "III(1).   If  the  Council  by  a  resolution               determines  that  a profession  tax  shall  be               levied, every   person not liable to the  tax,               on companies, who    after the date  specified               in the notice published   under  sub-sec.  (2)               of Sec. 98-A in any half  year-                (a) exercises a profession  , art or  calling               or    transacts   business   or   holds    any               appointment, public or private-               (i)   within the city for not less than  sixty               days in the aggregate, or               (ii)  outside the city but who resides in  the               city  for  not  less than sixty  days  in  the               aggregate; or               (b)   resides  in the city for not  less  than               sixty days in the aggregate and is in  receipt               of  any  pension or income  from  investments,               shall pay in addition to any licence fee  that               may  967               be leviable under this Act, a half yearly  tax               assessed  in  accordance  with  the  rules  in               Schedule IV in no case exceeding rupees  five,               hundred."               Along with this was added a new section-s. 98-               A which ran :               Sec. 98-A(1):               "Before  the  council  passes  any  resolution               imposing  a tax or duty for the first time  it               shall  direct  the Commissioner to  publish  a

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

             notice  in the Fort St. George Gazette and  in               the  local papers of its intention and  fix  a               reasonable  period  not being  less  than  one               month  from  the date of publication  of  such               notice  in  the Fort St.  George  Gazette  for               submission  of objections.  The  Council  may,               after  considering  the  objections,  if  any,               received   within   the   period    specified,               determine  by  resolution to levy the  tax  or               duty.  Such resolution shall specify the  rate               at  which, the date from which and the  period               of  levy, if any, for which such tax  or  duty               shall be levied.               When the Council shall have determined to levy               any tax or duty for the first time or at a new               rate the Commissioner shall forthwith  publish               a  notice  in  the manner laid  down  in  sub-               section (1) specifying the date from which the               rate at which and the period of levy, if  any,               for which such tax or duty shall be levied." At  this  stage it is necessary to refer to Schedule  IV  in accordance  with which the tax has to be assessed under  the terms  of  s.  111(1).  In the Act as enacted  in  1919  the relevant  rule  in Schedule IV divided persons  assessed  to profession tax etc. into 8 classes, based upon the amount of ,monthly  salary  received  in the  case  of  those  holding appointments,  and  income derived in the case of  those  in trade, -art - calling etc.  Each of these classes was  again sub-divided   ,into  two-the  first   sub-class   comprising "Persons holding appointments upon a monthly salary" and the other of 968 "persons  exercising any profession, trade, art, calling  or transacting business".  It would be seen that having  regard to Explanation 2 to s. 111, as it stood in 1919, before  its amendment by Act X of 1936 by reason of the provision  which enacted that "persons in receipt of pension" were deemed  to be "persons holding appointments" when the rule in  Schedule IV referred to "persons holding appointments" it included by the  statutory  fiction-pensioners who on the basis  of  the amount  of  pension which they derived  were  classified  as "persons  holding appointments" under the  various  classes. But  when  this  Explanation to s. Ill was  deleted  by  the Amending  Act  X  of 1936 and when  the  new  s.  111,(1)(b) referred to the "half-yearly tax assessed in accordance with rules in Schedule IV, it was urged that there could not have been  an assessment of persons in receipt of pension  unless they could be comprehended as within the category of persons holding   appointments,  or  of  persons   exercising   -any profession, trade, or art or calling",as these were the only classes-relevant to the present purpose who were within  the scope of the rules under Schedule IV. We  shall refer to the submission based on this  feature  as regards  the  terminology  employed in Schedule  IV  in  its proper  place.  The Corporation of Madras availed itself  of the provisions of s. 98-A and after the issue of the notices prescribed  by it passed a resolution at a meeting  held  on March  31, 1937 to levy inter alia "profession tax" for  the year  1937-38  at  -the rates which were  specified  in  the resolution.   As  regards "profession tax",  the  resolution read :               "Resolved  that the profession tax in  respect               of clauses 1, 2, 3, 4, 5 and 6 be fixed at the               maximum  rate and 25 per cent over  and  above               the minimum rates prescribed in Schedule IV of

6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

             the Act in respect of clauses 7, 8 and 9." This resolution further specified that the tax at the  rates therein  set  out  which were higher  ’than  what  prevailed before,  were to have effect from April 1,  1937.   Notwith- standing  the  apparent  inapplicability  of  the  rules  in Schedule IV to the levy of profession tax on pensioners, the Corporation  continued to assess pensioners to the said  tax and  969 collected  the  same.   The  lacuna  in  the  enactment  was Apparently  noticed  in 1942 when by a notification  in  the Official gazette the Schedule was amended in exercise of the powers  conferred  on Government by s. 347(3)  of  the  Act. Under  the amendment instead of the words  "Persons  holding any  appointment or persons exercising profession, trade  or calling  etc.  "the classes ’Were divided, on the  basis  of "the half yearly income received by the individual specified in s.     111(1)".   This  amendment  to  the  Schedule  was directed to    come  into  force from April  1,  1942.   The relevant terms of   Schedule IV have continued up to date in the same from as    amended in 1942-only the rate of tax has been  progressively increased; first in 1950, then  in  1958 and again in 1961, but in the view we take of the  principal contention  raised by the appellant it is not  necessary  to set out or deal with these increases. Pausing   here  the  ground  upon  which  the   demand   for "profession tax" made by the Corporation was impugned may be briefly  stated.  The power of the Corporation to  levy  the tax  is  dependent on the subject of the  tax  being  within State   legislative  power  under  the  Constitution.    The relevant  ’entry in the Legislative Lists conferring  taxing power  on  the  State under which alone,  if  possible,  the present  levy  could be supported was item 60 in  the  State List in Schedule VII of the Constitution reading: "Taxes on profession, trades, callings and’ employments." Being a "pensioner" cannot be a "profession, trade, business or  calling", nor could a tax on a person because he  is  in receipt  of a pension be said to be a tax on  "employments". The  tax  therefore under the last portion of  s.  111(1)(b) reading-Profession tax on persons "in receipt of any pension or income from investments"- is nothing but a tax on  income falling  within Entry 82 of the Union list.  If,  therefore, the  Corporation could not justify the tax as  being  within the  State  legislative power the only manner  in  which  it could  be  done  would be by reference to Art.  277  of  the Constitution  by  which "taxes, duties, etc."’  which  "were being lawfully levied" prior to the commencement of the 970 Constitution  were permitted to be  levied  "notwithstanding that  the tax was in the Union List" and "to be  applied  to the   same  purposes"  as  before.   Unless  therefore   the Corporation  could  make out that the tax now  impugned  was being lawfully levied from before the Constitution the  levy would  be  illegal and besides there  was  the  complication introduced by the enhancement of the rates of tax which,  as stated earlier, were effected in April, 1950, April 1958 and in  1961.  Leaving aside for the moment the question of  the effect  of  the  enhancement of the rate,  we  have  to  see whether  it has been established that the duty was  lawfully levied by the Corporation prior to the Constitution. The answer to the question whether it was "lawfully  levied" prior to 26th January, 1950 when the Constitution came  into force would depend upon the effect of certain provisions  of the Government of India Act, 1935.  Under that enactment, as under  the  Constitution,  the State  legislative  power  as

7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

regards  taxes of the nature now in controversy was  couched in  terms  identical with that employed in entry 60  of  the State List in the Constitution.  Entry 46 in the  Provincial Legislative  List  under the Government of India  Act,  1935 ran:               "Taxes  on  profession, trades,  callings  and               employments" : and  "taxes  on income" fell within  the  exclusive  Federal ’Legislative  power under Entry 54 of List I. By  the  Indo- Burma  Miscellaneous Provisions Act, 1940 the Parliament  of the  U.K.  enacted s. 142-A to whose terms we  shall  advert later and by the same enactment entry 46 was amended and the words : "Subject, however, to the provisions of s. 142-A" were added at the end of entry 46.  Here, again, it would be seen  that if  the right of the Corporation to levy profession  tax  on the  pension  received  by a pensioner had to  rest  on  the legislative  entries it would fail because it  was  ,outside the  legislative power of the Province under the Lists  read with  s. 100 of that Act corresponding, to Art. 246  of  the Constitution.   The validity of the levy during  the  period when  the Government of India Act was in force i.e.  between 1st April, 1937 and 25th January, 1950 was dependent on  971 its falling within the saving contained in s. 143 (2) of the Government of India Act which ran :               "Any  taxes,  duties, cesses  or  fees  which,               immediately  before the commencement  of  Part               III of this Act, were being lawfully levied by               any  Provincial  Government,  municipality  or               other local authority or body for the purposes               of  the  Province, municipality,  district  or               other  local area under a law in force on  the               first  day  of January, nineteen  hundred  and               thirty-five,  may, notwithstanding that  those               taxes, duties, cesses or fees are mentioned in               the  Federal Legislative List, continue to  be               levied and to be applied to the same  purposes               until provision to the contrary is made by the               Federal Legislature." No  doubt the Amending Act was not in force on 1st  January, 1935  having been passed in April 1936, but this  would  not take  it out of s. 143 (2) because para.3 of the  Indo-Burma (Transitory  Provisions)  Order,  1937, being  an  Order  in Council  by His Majesty in Council authorised by s.  310  of the Government of India Act, provided :               "Para 3(1): For a period of two years from the               commencement  of Part III of the  Indian  Act,               the  provisions of subsection (2)  of  section               one hundred and forty-three of that Act (which               authorises the continuance until provision  to               the   contrary   is  made   by   the   Federal               Legislature,   of  certain  provincial   taxes               falling  within the Federal List)  shall  have               effect  as  if the reference to the  first  of               January nineteen hundred and thirty-five  were               a  reference to the commencement of  the  said               Part Ill." It  would follow, therefore, that for the present demand  to be sustained as valid it would be sufficient if it was shown that  the tax was lawfully levied immediately prior  to  the commencement  of  Part III of the Government of  India  Act, 1935, i.e., on 31st March, 1937.  The learned Judges of  the High  Court  held that this condition was satisfied  and  on this basis they have dismissed the appellant’s petition.

8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

972 Learned  Counsel for the appellant submitted four points  in support of the appeal : (1) That the amending Act X of  1936 Was  not  validly passed by reason of its  contravening  the Devolution  Rules framed under s. 45-A of the Government  of India  Act,  1919  by which  Local  Governments  were  given legislative  power inter alia to levy taxes on  professions, trades, etc. but that the present tax which is really a "tax on  income" was a Central subject outside the competence  of the Local Legislature, (2) Even assuming that Act X of  1936 was valid, the tax which was permitted to be levied under it was,  having regard to the terms of s. 111 ( 1 ) a  new  tax which was levied for the first time by the resolution of the Corporation  only on and from April 1, 1937 and,  therefore, the   present  tax  was  not  in  operation  prior  to   the commencement  of  Part III of the Government of  India  Act, 1935  and not therefore saved by s. 143(2) of that Act,  (3) Besides,  between 1st April, 1937 to 1st April, 1942 it  was not  lawfully levied by reason of the lacuna created by  the words of the rules in Schedule IV being inapplicable to  the levy of a tax on pensioners, (4) The increase. in the  rates from  1937 onwards could not be justified even under s.  143 (2) or Art. 277 and by reason of these changes in rates  the tax became virtually a new tax and could not continue to  be lawfully levied to any extent after the increases. The  first  point need not detain us long.  Prima  facie  it would seem that there being no rigid distribution of  legis- lative power between the Central and Local Governments under the  Government  of India Act, 1919 any  infraction  of  the rules  made under the Devolution Rules framed under s.  45-A would  be  validated  by  s. 80-A(3) and  s.  84(2)  of  the Government  of India Act, 1919.  The learned Judges  of  the High  Court before whom this contention was  urged  rejected it,  and the learned counsel submitted that the decision  on this point was not correct.  But in the view that we took of the  other submissions made to us, we did not  hear  learned counsel fully on this point and therefore do not propose  to express any final opinion on the tenability of the  argument on this head.  973 As  preliminary to the consideration of the second point  it would  be necessary to advert to one feature of  the  change effected by the Amending Act of 1936 to the tax levy.  Under s.  111,  as it originally stood, the liability to  pay  the tax, i.e., the charge for the tax, was imposed by virtue  of the statute itself, on persons who for the period prescribed "exercised  a  profession  or trade or calling  or  held  an appointment", persons in receipt of pensions being deemed to be persons holding appointments.  This structure as  regards the imposition of liability was altered by the Amending Act. Under  the provision, as recast, before a liability  to  pay the  tax  could  arise the Council had  to  determine  by  a resolution  that profession tax shall be levied and  it  was only   that  resolution  which  brought  the   charge   into operation.  Thus, the resolution of the Council was  substi- tuted for the statute itself as the mode by which the charge was to be imposed.  There was also a second change that  was introduced by rendering residence for six months within  the city,  besides  the  receipt  of  pension  in  the  city,  a necessary ingredient of the chargeability of the "profession tax"  on  pensioners.  The effect of these two  changes  now calls for consideration.  On the amendment of s. Ill by  the Act  of 1935 coming into force in April 1936, the  statutory imposition  of the charge to tax laid on persons in  receipt of  pensions  within  the city of  Madras  ceased,  and  the

9

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

liability  to tax as regards the period after that date  was dependent  on the passing of a resolution by the Council  in terms  of the amended s. III( 1 ) of the Act.  In this  con- nection it has to be pointed out that though recourse to the procedure  as respects previous publication etc.  prescribed by  s.  98-A was necessary only in the case of  taxes  newly levied,  and  might have been adopted in  the  present  case because of the enhancement of the rates, still, a resolution ,of  the Council was necessary to impose the tax as  without it, no liability to profession tax would arise.  The  charge to  tax was imposed, as stated earlier by the resolution  of the Council which was to have effect from April 1, 1937.  In other words by reason of the repeal of the original  section III, the statutory charge to tax on pensions ceased in April 1936.   A charge was imposed again under the resolution  -of the Council effective from 1st April, 1937, so that 974 between  April  1936  to 31st March,  1937,  no  charge  was imposed  by  virtue of any "law".  Learned Counsel  for  the Appellant  submits that this is in effect a new levy-a  levy of  a tax which was not legally in existence on 31st  March, 1937,  and  if  this levy could not be  supported  as  being sanctioned  by  s. 143(2) of the Government  of  India  Act, 1935,  it is common ground that the lawfulness of  the  levy cannot  be  sustained.   We consider  this  submission  well founded.  If the statutory charge to profession tax  imposed on  pensioners by the Act of 1919, was lifted by the Act  of 1936,  and  the tax again came into operation  only  on  1st April, 1937, it would follow that there was no "levy of  the tax"  "immediately before" the commencement of Part  III  of the Government of India Act, 1935, so as to bring it  within the  saving  in  s. 143(2) of that Act.   Besides,  the  two circumstances.  viz. : that residence within the city for  a specified  period was made a condition of the  liability  to the  tax,  as well as the increase in the rates  would  both serve  to  emphasise  that the levy was a new  one,  with  a different texture and not a continuance of the tax which was levied just prior to the 1st April, 1937. Learned  Counsel  for  the respondents  the  Corporation  of Madras and the State have urged that it was in substance the old levy.  We are unable to agree.  The mere fact that prior to  1st April, 1937 the Corporation had under Act X of  1936 the  power to bring the tax into force by a resolution  does not  on a proper construction of s. 143(2) bring  it  within the  range  of  those  taxes or  duties  which  "were  being lawfully  levied" prior to the commencement of Part  III  of the Government of India Act which alone are permitted to  be continued  to  be levied notwithstanding that  these  duties were  in  the Federal Legislative List.  This  question  has been considered by us in great detail in The Town  Municipal Committee,  Amravati  v.  Ram Chandra  Vasudeo  Chimote  and Another, etc.(1) in which judgment has been pronounced today and  it  is unnecessary to re-examine the  same.   The  mere existence of a power to bring a tax into operation,  cannot, as pointed out, be equated with "a tax (1)  [1964] 6 S.C.R. 947. 975 which  was  being lawfully levied" before Part  III  of  the Government of India Act, 1935. The  3rd submission of learned Counsel for the appellant  is also well-founded.  The conclusion we have reached as to the effect  of the amendment to s. 111 by Act X of 1936, and  of the tax being imposed by resolution of the Council from  1st April, 1937 not being a tax which was being lawfully  levied immediately  prior  to  1st April, 1942,  is  reinforced  by

10

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

reference  to  the  rules in  Schedule  IV  which;  remained unamended  till 1942.  Under s. 111(1) as amended,  the  tax could  be  levied  only  in accordance  with  the  rules  in Schedule IV and as those rules did not make a provision  for the  levy of a tax on pensioners, it would follow  that  the tax  "was  not being lawfully levied" on them.   As  already pointed out, the relevant rules in that Schedule were framed at  a  time  when Explanation 2 formed part of  s.  III  and "pensioners"  were deemed to "hold appointments".  With  the deletion  of  the Explanation, the fiction  created  by  the original Madras Act IV of 1919 ceased and thereafter if  the rules in Schedule IV had to be applied to them these had  to be suitably modified.  This, as we have pointed out earlier, was  done only from April 1, 1942, so that in reality  taxes on  pensioners  were "lawfully" levied upto  1936  and  then after a break from April 1, 1942, we use the word "lawfully" on  the assumption that this could’ have been  legally  done under  the  Government of India Act, 1935, a  point  already discussed.   The  learned  Judges of  the  High  Court  have rejected  the argument addressed to them under this head  by reference  to  s.  18  of  the  Madras  General  Clause  Act corresponding  to s. 24 of the General Clauses Act  (Central Act X of 1897).  With great respect to the learned Judges we do not see how this provision affords any assistance in  the matter.  The Schedule and the rules continued without repeal or  amendment  when the new s. III (1)  was  substituted  in 1936, and when this section made a reference to the rules in Schedule IV it could only be a reference to the rules in the Schedule  IV  which stood’ unaltered.   If  the  phraseology employed in the Schedule was inappropriate to a class  which fell  within s. 111(1), the, only effect would be  that  the tax could not be levied, because 976 of  the  defect  in the law imposing the  tax,  but  such  a situation     is not remedied by reference to the  provision in the General Clauses Act on which the learned Judges  have relied. If,  therefore,  the, tax was one not lawfully  levied  just prior  to  April 1, 1937 and was one brought  in  after  the Government  of India Act, 1935 came into force,  and  really only  from  April 1, 1942 assuming this to be  lawful-it  is obvious that the validity of this tax could not be sustained as a continuation of a lawful pre-existing levy under s. 143 (2). In this view it is not necessary to consider the last of the points urged by learned Counsel and examine whether in  case of  an increase of rate, the entire tax would become  a  new tax  and  so  unconstitutional or whether  it  is  only  the increase in the rate that would become unenforceable. Learned  Counsel  for the  respondent-Corporation  submitted that  the tax could not be deemed to be a tax on income,  as was  suggested  by the appellant, but was really  a  tax  on employment because it was in consideration of past  services during  employment that pension was payable.  This  argument was  admittedly not urged before the learned Judges  of  the High Court and is obviously untenable.  The taxes  specified in  item  60 are taxes on the carrying on of  a  profession, trade,  etc. and would, therefore, apply only to a  case  of present  employment.   The  mere  fact  that  a  person  has previously been in a profession or carried on a trade,  etc. cannot  justify  a  tax under this Entry.  The  tax  on  the receipt  of pension or on the income from investments  which is  referred  to in the last part of s. 1 1 1 ( 1  )  is  in truth and substance a tax on income and in fact the argument before  the High Court proceeded on this basis, so have  the

11

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

learned Judges.  At the time the tax is levied the pensioner is in no employment but is only in receipt of income  though it might be for past services, in an employment. He next submitted that Act X of 1936 which had been  enacted prior to the Government of India Act, 1935 was continued  as an existing law by s. 292 of the Government of India Act and as there was nothing in the Government of India Act  against its continuance it would have effect  977 even  if the terms of s. 143 (2) were not satisfied  by  the present levy.  The learned Judges of the High Court accepted this  submission.  In our opinion, they were in order.   The question  of the correlation between Art. 372  corresponding to  s.  292  of the Government of India  Act  and  Art.  277 corresponding  to s. 143(2) of the Government of  India  Act was considered by this Court in South India Corporation  (P) Ltd.  v. The Secretary, Board of Revenue, Trivandrum(1)  and this Court said:               "It  is settled law that a  special  provision               should  be given effect to the extent  of  its               scope,   leaving  the  general  provision   to               control cases where the special provision does               not  apply.  The earlier discussion  makes  it               abundantly clear that the Constitution gives a               separate treatment to the subject of finances,               and  Art.  277 saves the existing  taxes  etc.               levied by States, if the conditions  mentioned               therein  are  complied with.  While  Art.  372               saves  all pre-Constitution valid  laws,  Art.               277 is confined only to taxes, duties,  cesses               or fees lawfully levied immediately before the               Constitution.   Therefore, Art. 372 cannot  be               construed  in  such a way as  to  enlarge  the               scope  of the saving of taxes, duties,  cesses               or  fees.  To state it differently,  Art.  372               must be read subject to Art. 277." Learned  Counsel next drew our attention to s.  142-A(1)  of the Government of India Act, 1935 and faintly suggested that it might afford him some assistance.  This provision, again, was  not adverted to before the learned Judges of  the  High Court   and  for  a  proper  reason.   S.   142-A(1)   which corresponds to Art. 276(1) of the Constitution enacted :               "Notwithstanding   anything  in  section   one               hundred   of  this  Act,  no  Provincial   law               relating  to  taxes  for  the  benefit  of   a               Province or of a municipality, district board,               local  board or other local authority  therein               in respect of professions, (1)  A.I.R. 1964 S.C. 207. 134-159 S.C.-62 978               trades,  callings  or  employments  shall   be               invalid on the ground that it relates to a tax               on income." This section would assist the respondent only if tax imposed were one on a profession, trade, calling, or employment  and in that event the section provides that such a tax shall not be  deemed to be a tax on income, but where the tax  imposed is  one not on a profession, etc. at all, it does  not  mean that  the  State  might levy a tax on  income  and  call  it "profession  tax".   This  is sufficient  to  dispose  of  a similar  argument as regards the scope of the amended  Entry 46 in the Provincial Legislature List (List II) to which  we have adverted earlier. The  appeal accordingly succeeds and the appellant  is  held

12

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

entitled  to the relief prayed by him in the, filed  in  the High  Court,  viz.,  a  writ  of  Prohibition  against   the respondent-Corporation   from  enforcing  the  demand.   The appellant  will be entitled to his costs from  the  respond- ents here and in the High Court. Appeal allowed.