Judgment :- 1. This Revision arises out of a small cause suit for realisation of profession tax due to the plaintiffs, the Mattancherry Municipal Council and involves the question as to whether the defendants transacted business within the Municipal limits and for the periods concerned within the meaning of sub-section 1(a) of S.86 of the Cochin Municipalities Act, XVIII of 1113, The case was referred to a Division Bench in view to its importance. 2. The defendants are the owners of the Sahib Oil Mills in Netoor Deasom in the Village of Maradu. According to the plaint averments the defendants sold cocoaunt oil produced in the mills to merchants at Mattancherry during the second half year 1951-52 and two half years of 1952 53 and 1953 54 and were accordingly assessed to profession tax by the Municipal Commissioner in the sum of Rs. 160. The defendants questioned their assessability and took appeal to the Municipal Council. The plaintiffs thereupon filed this suit on 12-11-1954 for the realisation of the tax with warrant fees of two annas and also interest at 6% amounting to Rs. 17 totalling in all a sum of Rs.172-2As. The defendants contested the suit on two grounds, firstly that they had not transacted business in the Municipality as alleged, and second that the suit was not maintainable at that stage when the defendant's appeal before the Municipal Council was still pending and undisposed of. The learned District Munsiff of Cochin after trial upheld the first of the defendant's contention and dismissed the suit. Hence this Revision. The second contention raised by the defendants as to maintainability of the suit was found against by the Munsiff and the defendants do not press that matter further. 3. Now subsection (1) of S.86 of the Cochin Municipal Act XVIII of 1113 provides for the liability to profession Tax of every person who, in any half year, (a) exercises a profession, art or calling or transacts business or holds any appointment, public or private. (i) within the Municipality for not less than 60 days in the aggregate, or (ii) without the Municipality but who resides in the Municipality for not less than 60 days in the aggregate, or (iii) resides in the Municipality for not less than 60 days in the aggregate and is in receipt of any pension or income from investments. (i) within the Municipality for not less than 60 days in the aggregate, or (ii) without the Municipality but who resides in the Municipality for not less than 60 days in the aggregate, or (iii) resides in the Municipality for not less than 60 days in the aggregate and is in receipt of any pension or income from investments. The question is what exactly is the scope of and applicability of the expression "transacts business, within the Municipality" in clause (1) (a) above. The plaintiff examined Pws.1 to 3 representing big merchants inside the Municipal limits to prove that they had entered into contracts with regard to the sale and purchase of the defendants' cocoanut oil through brokers and that the contracts were performed by the defendants filling up at the Mills the empty drums sent by the vendees and delivering the drums so filled up back in the yards of the vendees at Mattanchery whereafter the payments made. The court accepted this evidence and found accordingly. Nevertheless it thought that the contracts of sale in the case were entered into outside the Municipality i. e., at the Maradu Village "where the defendants' oil mills were situated and the property in the goods passed to the buyer immediately after the contract and the delivery of the oil for transport to the buyers at Cochin". The question is whether the view adopted by the court below is right. 4. Now, what is meant by exercising a trade or calling or carrying on business has given rise to considerable discussion and the question is, upon the authorities, one of considerable nicety. Distinction is made in this connection between trading with a given place and trading within it and the opinion is expressed that this depends upon the intention of the parties whether they could be said to exercise a trade or calling within a particular area and ultimately it is a question of fact. Distinction is made in this connection between trading with a given place and trading within it and the opinion is expressed that this depends upon the intention of the parties whether they could be said to exercise a trade or calling within a particular area and ultimately it is a question of fact. So where a wine merchant carrying on business in France appointed an English firm as his sole agent in England for the sale of wine, and the agent took the orders in England but without accepting them forwarded them to his principal in France, who exercised a discretion as to accepting them; and if accepted, the principal forwarded the consignment to the customer direct, it was held by the House of Lords that no trade was exercised within the United Kingdom. (See Grainger and son v. Gough. (1896) A.C. 325). This case was followed by the Privy Council in Lovell and Christimas v. Commissioner of Taxes (1908 A.C. 46. If however the agent in England had power to accept orders and in other cases where he supplied the customers on application from a general stock kept by him there, the trade was held to be exercised in England (Erichsen v. Last) (1882) 8 Q.B.D. 415 C.A.). These and other cases were considered by Sir John Wallis C. J. and Napier, J., in Municipal Council of Cocanada v. Clan Line Steamers Ltd., I. L. B. 42 Mad. 455 where the question arose as to the construction of S.53 of the District Municipalities Act, 1884, which provided for the taxation to profession tax of persons exercising within the Municipality one of the professions or callings specified in the schedule. It was found by the learned judges that the freight earnings contracts with shippers were not entered into at the Coconada Port by the local agent of the ship owner but elsewhere viz., at Madras where the agents had their offices and that therefore no profession or calling was exercised within the Coconada Municipality. The Dist. Municipalities Act was later amended so as to use the words "transacting business" but it was held that the change had not brought about any difference. See The Municipal Council Dindigal v. The Bombay Co. Ltd., Madras 52 Madras 207 where Courts Trotter C. J., observed: "In my view, that carries the matter no further. The Dist. Municipalities Act was later amended so as to use the words "transacting business" but it was held that the change had not brought about any difference. See The Municipal Council Dindigal v. The Bombay Co. Ltd., Madras 52 Madras 207 where Courts Trotter C. J., observed: "In my view, that carries the matter no further. I feel myself constrained to construe "transacting business" as meaning no more than the phrase "carrying on business" which has been defined by a series of decisions of the highest courts in England and settled for this Court by the decision in the Clan Line Case". 5. It would appear however that the emphasis which had so far been placed upon the making of the contracts which resulted in profits was to certain extent shifted in the later English cases on the subject. That aspect was no doubt important, but the test was riot decisive. So in Smidth v. Greenwood 1921, 3 K. B. 583, Lord Atkin L. J., observed: "There are indications in the case cited and other cases that it is that the sale contracts are made which result in a profit. It is obviously a very important element in the enquiry, and if it is the only element the assessments are clearly bad. The contracts in this case were made abroad. But I am not prepared to hold that this test is decisive. I can imagine cases where the contract of resale is made abroad and yet the manufacture of the goods, some negotiations of the terms, and complete execution of the contract takes place here under such circumstances that the trade was in truth exercised here. I think that the question is,- "where do the operations take place from which profits in substance arise". Similarly in Belfour v. Moce (1928-13 Tax Oases 558 Scrutton L. J., observed: "You may have as the subject matter of the contract work to be carried out in England by the foreign manufacturer, and the foreign manufacturer may carry out all the work in England and receive payment in England, and under these circumstances in my view it will not necessarily follow that because a contract is made abroad the foreign merchant is not exercising a trade in England. I say that because there had been a tendency to argue that once you know where the contract is made, that settles the question, once for all whether a contract is exercised in England or is not exercised in England. I do not think you can state the position in that absolute and clear cut way. Two other matters may be of some importance: the question where the payment is made, the question where the work is done or delivery of the goods is made". Following this line of reasoning it was held in Municipal Council, Mattanchery v. Asiatic Steam Navigation Co. Ltd. 34 Cochin Law Reports 157 that: "The expression'transacting business' as used in S.48 (of the Municipal Act XI of 1096) does not in out opinion connote that all the operations connected with the business constituting the trade of the company should necessarily be carried on within the municipality. It is not necessary that all the acts incidental to carrying on the trade should be done where the tax is levied. It would be enough if the transactions within the Municipality are carried on as part of the business". According to the learned judges the trade may be carried on and the business transacted in one place although the contracts are negotiated and profits are realised in another. All that was required for the purpose of the Municipal Act as contra-distinguished of the Income-tax Act was that the business transacted should be for profits. The important point was where the business was transacted and not where the profits were realised. It was accordingly held that apart from the place where the contracts were negotiated the place of delivery and the place of payment under the contract should also be taken into consideration for the purpose of finding whether there was a transacting of business within the Municipality. 6. Learned counsel for the respondent referred to Vakkan v. The Province of Madras, 3 Sales Tax Cases 204, where a Bench of the Madras High Court (Rajamannar C. J., and Venkatarama Iyer, J.) had occasion to consider a question of assessability of the plaintiff to sables tax which depended on whether he carried on business of selling goods with Fort "Cochin, then a part of Madras State. The plaintiff's principal place of business was in Cochin State and he was also a resident of that State. The plaintiff's principal place of business was in Cochin State and he was also a resident of that State. But he had large dealings with certain merchants in Fort Cochin in coir yarn. The contracts relating to these sales were executed in Fort Cochin and were signed either by the plaintiff or by his son. The goods were despatched from the plaintiff's office in Cochin State to Fort Cochin and delivered to the merchants in Fort Cochin. The learned judges held that the sales must be deemed to have taken place in Fort Cochin and that therefore the plaintiff was liable to sales tax under the Act, and in doing so observed that the question did not turn upon whether he was a resident of Cochin State and his place of business was in that State nor upon whether he had no place of business in the area where he was sought to be taxed. This case went up on appeal before the Supreme Court in decision reported in V. O. Vakken and others v. The State of Madras, 6 Sales lax Cases 647, where the aspect was again stressed that many if not all of the contracts of sale were entered into by the appellant in Fort Cochin and the goods were deliverable and delivered in the yards of the purchasers in the said place. 7. The question of carrying on business has also come up for interpretation under S.20(a) of the Civil Procedure Code which enables the institution of suits in a court within the local limits of whose jurisdiction the defendant carries on business and it has been held that for the purpose of carrying on of business at a certain place the essential part of the business must take place in that place and what is essential for this purpose is a question of fact depending on the circumstances. See Ahamad Kunju v. Sree Hanuman Industries, 1956 K.L.T. 248 where all the cases on the subject are collected. 8. In this case as we said the contracts were entered into through brokers at Mattanchery, the goods were delivered at the yards of the purchasing merchants within the limits of Mattanchery and payment was made soon after in Mattanchery. There can be no doubt in the circumstances that the defendants transacted business within the limits of the plaintiff Municipality. 8. In this case as we said the contracts were entered into through brokers at Mattanchery, the goods were delivered at the yards of the purchasing merchants within the limits of Mattanchery and payment was made soon after in Mattanchery. There can be no doubt in the circumstances that the defendants transacted business within the limits of the plaintiff Municipality. The fact that the defendants had their mills and manufactured oil in place outside the Municipal Council did not matter to any extent. The fact again, assuming its correctness along with the Munsiff that the property in the goods passed to the buyers immediately after the delivery to the carrier at Maradu Village did not affect the question. 9. Learned counsel for the respondent-defendant raised the question that there was no proof in any event of the period covered by transactions, viz., as to whether they extended for at least the 60 days in the half year required by the taxing section. But no such question was ever raised either in the pleadings or in the court below. And even otherwise the evidence of Pw.1 to Pw. 3 as to duration though not exactly precise and further as to the extent of the transaction as involving more than 5 Lacs worth of goods would it is quite probable, cover the entire period. There is therefore no merit in this objection. Learned counsel for the respondents finally raised the objection that interest was not in any event allowable as claimed. Now it is the rule that interest cannot be collected on delinquent taxes without statutory provisions. See Doraswary Iyengar's Law of Municipal Corporations 2nd Edn. p. 380, quoting from Dillon Vol. IV p. 2483. The Cochin Municipal Act does not contain a provision for interest. It has accordingly to be disallowed. 10. We therefore allow the revision petition and grant a decree in favour of the plaintiffs in terms of the plaint except to the extent of the claim therein for interest before suit. The plaintiffs will get their costs in this court and in the court below from the defendants.