Pandiri Sarveswara Rao vs Maturi Umamaheswara Rao and Others

Wadsworth, J.—This petition raises the question of the precise effect of Provisos (B and C) of Section 3(ii) of Madras Act IV of 1938. The

petitioner was the judgment-debtor in a mortgage suit, being himself the mortgagor, and he sought the benefits of the Act u/s 19 in respect of the

mortgage decree. He was held by the lower Court to be disentitled to those benefits on the ground that he was assessed to profession-tax in

respect of the first half year of the financial year 1937-38. The lower Court also rejected the plea advanced on behalf of the creditor that the

petitioner was also disqualified under Proviso (C). The petitioner was admittedly not assessed to profession-tax within the two years preceding the

1st October, 1937. His assessment was actually made on 15th January, 1938, but it was retrospective, so that it covers the half year beginning 1st

April, 1937. The learned District Judge, applying Section 137-B of the Madras City Municipal Act, has held that a person who is assessed to

profession-tax in respect of any portion of the two years immediately preceding the 1st October, 1937, comes within the mischief of Proviso (B) to

Section 3(ii) even though the assessment was not made within the two years immediately preceding the 1st of October, 1937. It is difficult to

support the view taken by the learned District Judge, but an attempt has been made to support it by referring to the last words of Section 137-B of

the City Municipal Act which are:

The provisions of this Act and the rules made thereunder shall so far as may be apply as if the assessment was made in the half year or year to

which the tax or fee relates.

It seems to us that this provision is obviously intended to make the machinery for the levy of the tax applicable to a retrospective assessment and

to meet any possible objection which might be raised owing to the delay in making the assessment. The whole of Section 137-B was apparently

drafted to meet the situation created by the decision in Sir Gulam Muhammad Ali Sahib Bahadur Khan Bahadur Vs. The Corporation of Madras, .

But it must be noted that, in the case of a retrospective assessment, it is not provided that the date of the assessment shall be deemed to fall within

the period to which the assessment relates; and it would obviously be impracticable to read this provision as having that effect, for there are various

matters in respect of which the date of the assessment will be of importance, with regard to which it must necessarily be the actual date of the

assessment and not some vague point of time within the period, to which the assessment relates. For instance, with regard to the right to object to

an assessment or the right of appeal it must be the actual date, and not and notional date, which will determine limitation : and with reference to the

preparation of the electoral roll, the electoral roll must obviously be prepared with reference to the assessments as they actually exist at the time

when the electoral roll is prepared, and it could not be invalidated by any retrospective assessments made thereafter. Moreover, the words of

Proviso (B) to Section 3(ii) of Act IV of 1938 are perfectly plain audit is impossible to read them as if the criterion for the exclusion was the actual

period for which the tax was payable and not the time within which the assessment was made.

An argument has been based on the form B prescribed under the Act for the certificate u/s 27, which form provides for details regarding the

period for which an individual has been assessed to tax and does not provide for the entry of the date of the assessment. This may well be a defect

in the drafting of the form but we cannot admit the proposition that the meaning of the Act is to be derived from the forms which have been

prescribed by the Government under its rule-making powers. To US it is quite clear that the words has within the two years immediately preceding

the 1st October, 1937, been assessed"" mean what they say and nothing else. We are therefore of opinion that the learned District Judge was

wrong in holding that the petitioner was disqualified from claiming to be an agriculturist by reason of an assessment to profession-tax made after the

1st October, 1937, although relating to the period immediately before the 1st October, 1937.

A further contention advanced by the creditor rests on the fact that, though the petitioner was assessed to house-tax on properties having an

annual rental of only Rs. 300, his wife has been similarly assessed on properties with a rental value of Rs. 432. Both the properties in the wife''s

name and the properties of the petitioner are covered by the suit mortgage executed by the petitioner. It is contended that both these properties

belong to the petitioner and that the assessment which was made in respect of these properties must be regarded as the assessment of the

petitioner. A similar contention was rejected by a Bench of this Court in the case of Swaminatha Odayar Vs. Srinivasa Aiyar and Others, . It has

been argued that the terms of Rule 7 framed under the Act lend some support to the creditor''s contention. By this rule a person who has been

assessed to property-tax, which assessment would disqualify him under Proviso (C) to Section 3(ii), is permitted to ged rid of the disqualification

by proving that during the relevant period he was not the owner of the property in respect of which the assessment was levied. Presumably the

intention of this rule is to cover cases in which the Municipal assessment register was not up to date so that the assessment would stand in the name

of some one who does not actually pay it. We are not concerned now with the validity of this rule, but it may well be argued that Proviso (C)

contemplates not only the assessment of an individual but also the ownership by that individual of the property in respect of which he has been

assessed. It could not however be argued that Proviso (C) contemplates only the ownership of the property by the individual concerned and does

not contemplate his assessment in respect thereof. Proviso (C) clearly requires that, in order to come within its scope, the individual must have

been actually assessed. It is not sufficient for him to show that he is interested in property in respect of which somebody has been assessed.

In the result, therefore, we must allow this Civil Revision Petition with costs and remit the application to the trial Court for disposal in the light of

this judgment.