Disposed

Ajith Kumar v. the Mavelikkara Municipality

Kerala HC7 Jun 2012WP(C)/4806/2012

Case brief

AI extract

What is this about?

Two issues were raised regarding the revision of profession tax and licence fee without compliance with statutory provisions and after a Government order freezing the revision. The court held that Section 231(2) does not apply where tax rates are prescribed by rules. The court allowed adjustment for excess licence fees and directed petitioners to seek statutory remedies for excess profession tax.

What did the court decide?

Licensee left open to claim adjustment of excess amount towards license fee; aggrieved persons open to statutory remedy for profession tax.

Ajith Kumar Vs the Mavelikkara Municipality — Municipal and Town Planning | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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THURSDAY, THE 7TH DAY OF JUNE 2012/17TH JYAISHTA 1934

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WP(C).No. 4806 of 2012 (A)

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PETITIONER(S):

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1. AJITH KUMAR, AGED 45 YEARS S/O.KESAVA PILLAI, PULARI MEDICALS, MAVELIKKARA (PO) PUTHIYAKAVU.

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2. JOSE MOMALAN S/O.ANTONY, AMAL OPTICALS, MAVELIKARA (PO) PUTHIYACAVU.

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3. K.J.YESUDAS S/O.K.J.JOHN, KOTTAYIL LEATHER, MITCHAL JUNCTION MAVELIKKARA (PO).

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BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN

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RESPONDENT(S):

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1. THE MAVELIKKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MAVELIKKARA ALAPPUZHA DISTRICT-690 101.

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2. THE SECRETARY MAVELIKKARA MUNICIPALITY, MAVELIKKARA ALAPPUZHA DISTRICT-690 101.

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BY SRI. RASHEED. C, SC, MAVELIKKARA MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-06-2012, ALONG WITH WPC. 4832/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DCS

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WP(C).No. 4806 of 2012 (A)

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APPENDIX

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PETITIONER(S) EXHIBITS :-

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EXHIBIT P1- COPY OF THE RECEIPT OF PROFESSION TAX FOR THE YEAR 20112012 VIDE NO.19642.

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EXHIBIT P1(A)- COPY OF THE RECEIPT OF PROFESSION TAX FOR THE YEAR 20112012 VIDE NO.20015.

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EXHIBIT P2- COPY OF THE PROFESSION FOR THE YEAR 2010-2011.

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EXHIBIT P3- COPY OF THE RECEIPT FOR LICENSE FEE FOR THE YEAR 2012-2013 VIDE NO.0002269.

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EXHIBIT P3(A)- COPY OF THE RECEIPT FOR LICENSE FEE FOR THE YEAR 20122013 VIDE NO.0002565.

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EXHIBIT P4- COPY OF THE LICENSE FEE FOR THE YEAR 2011-2012 VIDE NO.024511.

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EXHIBIT P4(A)- COPY OF THE LICENSE FEE FOR THE YEAR 2011-2012 VIDE NO.0023028.

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EXHIBIT P5- COPY OF THE REPRESENTATION DATED 13.2.2012.

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EXHIBIT P6- COPY OF THE RECEIPT DATED 13.2.2012.

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EXHIBIT P7- COPY OF THE REPRESENTATION DATED 23.2.2012 SUBMITTED BY THE SECRETARY.

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EXHIBIT P8- COPY OF THE RECEIPT SHOWING PAYMENT OF PROFESSION TAX BY THE 3RD PETITIONER.

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RESPONDENTS' EXHIBITS :- NIL

/TRUE COPY/

P.A. TO JUDGE

DCS

ANTONY DOMINIC, J

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W.P.(C)s.4806 & 4832/2012

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Dated this the 7^th day of June, 2012

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JUDGMENT

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Two issues are raised in this writ petition.

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One is that the Municipality has revised the profession tax, with effect from 1.4.2012 without complying with the provisions of Section 231(2) of the Kerala Municipality Act. Insofar as this contention is concerned, the learned counsel appearing for the respondent Municipality invited my attention to the provisions of the Kerala Municipality (Profession Tax) Rules,2005, and submitted that all that the Municipality has done was to levy profession tax at the rate as prescribed in Item 11 of the schedule thereto. Section 231(2) provides for the manner in which tax is to be levied and to be revised. This necessarily contemplates discretionary power on the Municipality to fix the rate of tax as well. In this case, rate of profession tax is already prescribed in the Rule mentioned above. Therefore, when the Rule came into force in 2005, the tax payers had the

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W.P.(C)4806 & 4832/12

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liability to pay the tax at the rate prescribed in the Rule. In other words, all that the Municipality has done is to levy the tax at the rate as prescribed in the Rule, which means, the Municipality had no role either in levying the tax or in fixing the rate thereof. In such a case, Section 231(2) of the Act has no application.

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3. It was then contended by the learned counsel for

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the petitioner that the licence fee payable by the traders like the petitioners also was revised by the Municipality

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and that the Government frozened the revision with effect from 27.2.2012.

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However learned counsel for the Municipality contended that though they realised the tax at the revised rate prior to 27.7.2012, they have not realised the revised tax after receiving the communication of the Government decision.

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Admittedly the Government have frozened the decision of the Municipality to revise the tax by its order

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W.P.(C)4806 & 4832/12

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dated 27.7.2012. Therefore, once that decision is communicated to the Municipality, Municipality could not have collected the licence fee at the revised rate. Consequently, if the Municipality has collected the licence fee at the revised rate after receiving the Government Order dated 27.2.2012, such excess amount is liable to be refunded or adjusted towards the future liability of the respective licensees.

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Therefore, I leave it open to the licensee concerned,

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to claim adjustment of the excess amount, if any, towards the license fee. Insofar as the profession tax is concerned, I also clarify that if any person is aggrieved by the levy of tax at the enhanced rate, it will be open to the person concerned to invoke the statutory remedy available under Rule 4 of the Rules mentioned above.

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Writ petition is disposed of as above.

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ANTONY DOMINIC, Judge

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mrcs

Ajith Kumar v. the Mavelikkara Municipality

Case brief

What is this about?

What did the court decide?

Ajith Kumar v. the Mavelikkara Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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