Manickam Pillai vs The Commissioner, Municipality

K.N. Mudaliyar, J.

Mr. Daraisami made the argument that so far at Ex. P. 1, P. 5, P. 9, P. 13, P. 15 and P. 16 are concerned, the order of the court below is improper. He based the argument on the ground that is regard to the relevant half years severed by Ex. P. 1, P. 5, P. 9 and P. 13 there is a violation of R. 29 (3) of the Taxation and Finance Rules - schedule IV - by executive authority, in the sense that no notice has been served within the succeeding half year in respect of the tax due from the accused petitioner. In fact, Mr. Doraiswami''s argument is that in respect of Ex. P. 1, P. 5. P. 9 and P. 13, they have been served on the petitioner only on 10th November 1967 and 21st November 1967. That would be clearly beyond the period contemplated by R. 29 (3).When ones It is established or even doubted that notices were not served on the accused petitioner within the succeeding half year as contemplated in R. 29(3) then, there is a total blanket ban on the executive authority to resort to R. 30, for R. 29 (30) states that the ten for the half year first mentioned in the sub-rule shall not be recovered in the manner laid down is R.30. Therefore, on a construction of R. 29 (3) and R. 30, I am of the view that the executive authority cannot possibly resort to the use of R. 30. Once the executive authority cannot exploit R. 30, it cannot equally exploit R. 35 for Rs. 35 completes the tax due on account of the building which remarks unpaid in whole or in part at the end of the period specified in sub-rule (1) of Rule 30. So, the legal disability preventing the executive authority from a resort to R. 30 automatically invoices the exclusion of R. 35 from the arms of the executive authority. This would apparently give an impression that the concerned Municipality may late the revenue in the absence of report to R. 30 and 35 of Taxation and Florence Rules-Schedule IV. But the Legislative has found a safety value is the provision of the Rule 4 of Rule 29 which runs that;

Nothing contained in this rule or In R.30 shall preclude the council from using in a civil court for any tax due to it under this Act.

It is open to the Municipality to recover the tax due from the petitioner under Exs. P. 1, P. 5, P. 9 and P. 13 by resorting to such legal remedies as are open to the executive authority under the Act or the rules there under. Mr. Doraisami contended that Exs. P. 15 and P. 15 do not contain the date of services on the petitioner; Mr. Alagiriswami brought to my notice that so far as Exs. P. 15 and P. 16 are concerned, there is the evidence of P.W.1 those these were served on 21st November 1967. But Exs. P. 15 and P. 16 would reveal no date of service on the petitioner. As such, I am not prepared to set upon the oral testimony of P.W. 1 about the date of service of Exs. P. 15 and P. 16, particularly in the absence of an entry of the date of service on the petitioner in the documents themselves. I affirm the finding of the trial Magistrate that the prosecution has proved its case beyond any doubt against the accused-petitioner in respect of the other items of taxes due to the Municipality by the petitioner barring the tax amounts covered by Exs. P. 1, P. 5, P. 9, P. 13, P. 15 and P. 16. In respect of these items, the liability for payments of tax cannot be featured on the petitioner. It is open to the Municipality to recover the tax amount due under Exs. P. 1, P. 5, P. 9, P. 13, P. 15 and P. 16 in ways that are open to it in law. To this extent, the order of the trial Magistrate is modified. Subject to this modifications, this revision petition is dismissed.