JUDGMENT C. A. Vaidialingam, J. 1. In this batch of 9 writ petitions, the respective petitioners challenge the assessment to profession tax, made by the concerned Municipalities, for the half years beginning from 1-10-1961, under the Kerala Municipalities Act, 1960 (Act XIV of 1961). Act XIV of 1961, which, there is no controversy came into force from 1-10-1961. 2. These writ petitions can be broadly grouped under four heads: (1) O. P. 859/62, wherein the concerned company challenges the proceedings initiated for levy of profession tax by the Ernakulam Municipality. The respondent Municipal Commissioner, in that writ petition, is represented by Mr. V. R. Krishna Iyer, learned counsel. (2) The second group of cases is taken in by O. P. Nos. 904/62 1919/62 and 2768/62, wherein the respective petitioners, again, challenge the proceedings initiated for levy of profession tax under the same statute, by the Commissioner of the Alleppey Municipal Council. The said Commissioner Municipal Council is represented by Mr. S. Narayanan Potti, learned counsel, (3) The third group of cases is taken by O, P. 940/62, and 942/62, wherein again, the respective petitioners challenge similar proceedings taken by the Commissioner of the Kottayam Municipal Council. Here again the said respondent officer is represented by learned counsel Mr. K. Velayudhan Nair. (4) The fourth and last group is taken in by O. P. Nos. 2479/62, 2482/62 and 2515/62, wherein also the respective petitioners challenge similar proceedings taker! under the same Act, by the Commissioner of the Quilon Municipal Council. The Commissioner of that Municipality is represented by Mr. V. K. K. Menon, learned counsel. 3. In O. P. 1919/62, Mr. T. S. Krishnamoorthy Iyer, learned counsel for the petitioner challenges the initiation of proceedings as against his client, by the Commissioner of the Alleppey Municipal Council; and in O. P. Nos. 940 and 942 of 1962, Mr. K. P. Abraham, learned counsel for the petitioners challenges the initiation of proceedings as against his clients by the Kottayam Municipality. In all the other writ petitions the respective petitioners are represented by Mr. P. K. Kurien, learned counsel. 4. At this stage, it is not really necessary for me to go into the details of the attacks levelled against, and the manner in which the assessments have been completed by, the assessing authority. In all the other writ petitions the respective petitioners are represented by Mr. P. K. Kurien, learned counsel. 4. At this stage, it is not really necessary for me to go into the details of the attacks levelled against, and the manner in which the assessments have been completed by, the assessing authority. Those aspects will be dealt with by me, after considering the common questions of law that have been raised by all the learned counsel for the petitioners in these proceedings, regarding the jurisdiction of the Officers concerned, to initiate and complete the levy, assessment and collection of profession tax under the provisions of the Kerala Municipalities Act, Act XIV of 1961. 5. Mr. P. K. Kurien, learned counsel for the petitioner in O. P. 859/62 and certain other connected writ petitions, has advanced the leading arguments on these questions of law; and his contentions have been supported, by and large, by Mr. T. S. Krishnamoorthy Iyer, learned counsel appearing for the petitioner in O. P. 1919/62, and by Mr. K. P. Abraham, learned counsel appearing for the petitioners in O. P. 940 and 942/62. At this stage, it may also be mentioned that Mr. K. P. Abraham, learned counsel has also raised certain special contentions, which will be adverted to at the appropriate stage. Similarly, Mr. V. K. K. Menon, learned counsel for the respondent Municipal Commissioner in O. P. 2479/62 etc. has controverted the stand taken by Mr. P. K. Kurien, learned counsel for the petitioner, and has attempted to justify the initiation of action by the various Municipalities concerned under the provisions of the Kerala Municipalities Act, 1960, Act XIV of 1961. 6. In view of the fact that the validity of certain provisions of the Kerala Municipalities Act, as also of the Kerala Surcharge on Taxes Act, 1957, are being challenged in these proceedings, notice had been issued to the State also. The State is also a respondent in some of these proceedings, and is represented by the learned Government Pleader. 7. The legal contentions that have been taken by Mr. P. K. Kurien, learned counsel for the petitioner are four fold; (1) That the Kerala Municipalities Act, 1960 (Act XIV of 1961), being a new Act and a post Constitution enactment, must conform to the limitations provided in clause (2) of Art.276 of the Constitution. 7. The legal contentions that have been taken by Mr. P. K. Kurien, learned counsel for the petitioner are four fold; (1) That the Kerala Municipalities Act, 1960 (Act XIV of 1961), being a new Act and a post Constitution enactment, must conform to the limitations provided in clause (2) of Art.276 of the Constitution. According to the learned counsel, the said Act violates the provisions of clause (2) of Art.276. (2) The second contention taken by the learned counsel for the petitioner is that the levy of profession tax, over and above the sum of Rs. 250/-, is not saved by the proviso to clause (2) of Art.276 of the Constitution, inasmuch as the Cochin Municipal Act and the Travancore District Municipalities Act have been repealed and the Kerala Municipalities Act, XIV of 1961, is a new Act; and the new Act itself does not show any intention to continue the levy at the old rate. (3) The third contention taken by the learned counsel for the petitioner is that as matters stand, there is a discrimination which violates Art.14 of the Constitution, namely that there are assessees who will have to pay only the maximum profession tax of Rs. 250/- as envisaged in clause (2) of Art.276; whereas in all other cases, , where the proviso to clause (2) of Art.276 applies, the assessees will have to pay amounts larger than that by the assessees who are protected by clause (2) of Art.276. This, according to the learned counsel, amounts to discrimination, based upon no reasonable classification or differentia, and therefore violates Art.14(4). The fourth and the last contention urged by the learned counsel for the petitioner, is that the levy of surcharge, in all these cases is illegal and void. That levy is based upon S.4 of the Kerala Surcharge on Taxes Act, 1957 (Act XI of 1957), and that provision will have to be struck down by this Court as offending Art.276(2) of the Constitution. 8. The third and the fourth contentions raised by the learned counsel for the petitioner can very well be disposed of easily. So far as the fourth contention is concerned, that question directly arose before me for consideration in another writ petition, namely O. P. No. 1342/1962, the judgment in which was rendered on 24th September 1963. Since reported in 1964 KLJ 389 . So far as the fourth contention is concerned, that question directly arose before me for consideration in another writ petition, namely O. P. No. 1342/1962, the judgment in which was rendered on 24th September 1963. Since reported in 1964 KLJ 389 . In that writ petition, I had occasion to consider a similar attack regarding the validity of S.4 of the Kerala Surcharge on Taxes Act, 1957, Act XI of 1957. After a consideration of the various aspects presented before me in that writ petition, I had held that S.4 of that Act will have to be struck down as void as offending clause (2) of Art.276 of the Constitution. No fresh aspects have been presented in these proceedings by any of the learned counsel appearing for the contesting respondents or by the learned Government Pleader for the State. Therefore, adopting the view expressed by me in the writ petition already referred to, namely O. P. 1342/62, this contention of the learned counsel for the petitioner will have to be accepted. Therefore whatever may be the merits of the attack levelled as against the orders of assessment, in so far as the assessment orders take in also the levy of surcharge under Act XI of 1957, to that extent the orders of assessment levying surcharge must be held to be illegal. Therefore, this contention of the learned counsel is accepted. 9. The third contention of Mr. P. K. Kurien, learned counsel for the petitioner and which contention is supported by Mr. K. P. Abraham, learned counsel appearing for the petitioners in O. P. 940 and 942/62, is one of discrimination alleged as against the nature of the levy between different assessees, depending upon the question as to whether those assessees are protected by clause (2) of Art.276 of the Constitution. Though one may sympathise with the grievance placed before this Court by learned counsel for the petitioners, that there is a protection guaranteed by the Constitution itself in respect of post Constitution enactments placing an embargo upon the maximum limit of profession tax that they are liable to pay under Art.276(2), nevertheless it is not possible to ignore the saving provision made in the Constitution itself by the proviso to clause (2) of Art.276. As to whether a particular rate of levy which was adopted prior to the Constitution, has been continued to be levied, is a totally different point. As to whether a particular rate of levy which was adopted prior to the Constitution, has been continued to be levied, is a totally different point. That is a matter which will be considered when dealing with the other contentions of Mr. P. K. Kurien, learned counsel for the petitioner. But this question is being dealt with only for the limited ground of indicating of the saving provision in proviso to Art.276(2). In my view, there is no question of violation of Art.14 coming into the picture, because it is not as if the State has in any manner discriminated as against the assessees, as urged by the learned counsel for the petitioner. But the differentiation, if any, is really because of the provisions made in the Constitution itself, namely under Art.276(2), distinguishing the other kinds of assessments saved under the proviso to Art.276(2) as such; and therefore this contention, based upon violation of Art.14 cannot certainly be accepted in the circumstances of this case and will have to be rejected. 10. Then the other contentions that have been urged by learned counsel for the petitioner and already referred to, namely points 1 and 2, arise for consideration. Before I consider those contentions, as well as the stand taken by learned counsel for the respondents, it is necessary to clear the ground by referring to certain matters, which are not in controversy. 11. There is absolutely no controversy in these proceedings that the State Legislature has got jurisdiction to enact a law levying profession tax in view of Entry 60 in List 2 of Seventh Schedule to the Constitution, read with Art.246 and 276(1) of the Constitution. In fact, I have also adverted to this aspect in my judgment in O. P. 1342/62. Therefore, the competency of the State Legislature cannot certainly be challenged and has not been challenged. It is also necessary to state that the levy of profession tax, at a rate higher than Rs. 250/- per annum has been continued to be levied even after 26-1-50, by the Ernakulam, Alleppey, Kottayam and Quilon Municipalities under the relevant provisions of the Cochin Municipal Act and the Travancore District Municipalities Act. There is also no controversy that levy at a higher rate than Rs. 250/- per annum has been continued to be levied even after 26-1-50, by the Ernakulam, Alleppey, Kottayam and Quilon Municipalities under the relevant provisions of the Cochin Municipal Act and the Travancore District Municipalities Act. There is also no controversy that levy at a higher rate than Rs. 250/- was also continued to be made till those two statutes were repealed by the Kerala Municipalities Act, Act XIV of 1961, with effect from 1-10-1961. Here again I may state, that the question whether the levy at the old rate can be said to be continued, under the Kerala Act of 1960, is a matter which arises for consideration. 12. It is now necessary to advert to the scheme of the Kerala Municipalities Act, 1960, Act XIV of 1961. The preamble to the Act makes it clear that the object is to consolidate and amend the law relating to municipal administration in the State of Kerala. Pausing here for a minute, it may be stated that till 1-10-1961, on which date this Act came into force, there were three different enactments in the three different areas of the State, namely Cochin, Travancore and Malabar. No controversy arises in these proceedings regarding any levy made by any municipality situated in the Malabar area. But for completing the narration of facts on this aspect, it is necessary to advert to the statutes that were in force in those different areas at the material time. 13. The Cochin Municipal Act, 1113 (Act XVIII of 1113) along with the relevant schedules and Taxation and Finance Rules, was the statute in force in the Cochin area, within which the Municipality concerned in O. P. No. 859/62, namely Ernakulam Municipality, is situated. Similarly, so far as the Alleppey, Quilon and Kottayam Municipalities are concerned, they are situated in the Travancore area; and the material provisions which relate to that area are contained in the Travancore District Municipalities Act, 1116 (Act XXIII of 1116) and the relevant Taxation and Finance Rules occurring in Schedule 2 of the said Act. So far as the Malabar area is concerned, the statute that was in force in that area is the Madras District Municipalities Act, (Act V of 1920) along with the relevant Taxation and Finance Rules occurring in Schedule IV of the statute. 13A. So far as the Malabar area is concerned, the statute that was in force in that area is the Madras District Municipalities Act, (Act V of 1920) along with the relevant Taxation and Finance Rules occurring in Schedule IV of the statute. 13A. As I have already indicated, the preamble to the Kerala Municipalities Act, (Act XIV of 1961) clearly states that the object of the Act is to consolidate and amend the law relating to municipal administration in the State of Kerala. S.2 deals with repeal and saving. That section is as follows: "2. Repeal and Saving.-- The Travancore District Municipalities Act, 1116 (XXIII of 1116), the Cochin Municipal Act (XVIII of 1113) the Cochin Transfer of Property (Duties) Act, 1124, and the Madras District Municipalities Act, 1920 (Act V of 1920) as in force in the Malabar District referred to in sub-s.(2) of S.5 of the States Reorganisation Act, 1956 (Central Act XXXVII of 1956), are hereby repealed : Provided that“ (i) the said repeal shall not affect the validity or invalidity of anything already done under the repealed enactments ; (ii) all municipalities constituted, limits defined, committees established, appointments, rules, regulations, bye laws and orders made, notifications and notices issued, taxes, rates and fees imposed or assessed, licences granted, contracts entered into, and suits and other proceedings instituted, under the Acts repealed, shall, so far as may be, be deemed to have been respectively constituted, defined, established, made, issued, imposed or assessed, granted, entered into and instituted under this Act; and (iii) any enactment in force in the State of Kerala, or document referring to the repealed enactments shall, so far as may be, be construed to refer to this Act or to the corresponding portion thereof." A perusal of S.2 extracted above, will clearly show that the three statutes referred to by me earlier, namely the Cochin Municipal Act, The Travancore District Municipalities Act, and the Madras District Municipalities Act, have been repealed by the new enactment. No doubt, one other piece of legislation has also been repealed under S.2, namely the Cochin Transfer of Property (Duties) Act, 1124. But it is not necessary to refer to that enactment in the present proceedings. 14. No doubt, one other piece of legislation has also been repealed under S.2, namely the Cochin Transfer of Property (Duties) Act, 1124. But it is not necessary to refer to that enactment in the present proceedings. 14. Pausing here, I may also refer to the particular expression used in the second proviso to S.2 of Kerala Act XIV of 1961, namely "taxes, rates and fees imposed or assessed", which, according to Mr. P. K. Kurien, learned counsel for the petitioner, will not certainly amount to continuing the levy of tax on professions at a rate higher than Rs. 250/- per year, as is necessary, in order to make the provisions of the proviso to clause (2) of Art.276 of the Constitution applicable, to save the legislation. That is an aspect which I will have to consider later. 15. Part 3 Chapter 6 of the new Act deals with Taxation and Finance. S.96 in that chapter enumerates the various types of taxes and duties that can be levied by the municipal councils. There is no controversy that it includes also the levy and collection of profession tax. This Section, namely S.96, corresponds to S.77 of the Travancore District Municipalities Act, and S.72 of the Cochin Municipal Act. 16. The other provision that has to be noted is S.110 of the new Act. It may be stated in this connection that S.110, 112, and 117 occur under the heading "Profession Tax", and they deal with the levy of profession tax as such. S.110 authorises the council by a resolution to determine that profession tax, in the circumstances mentioned therein, shall be levied. Every person exercising a profession, or a company transacting business, within the municipality for not less / than sixty days in any half year, will be liable to pay profession tax under S.110. This Section corresponds to S.91 of the Travancore District Municipalities Act and S.86 of the Cochin Municipal Act. The next Section that is to be noted is S.112. That section deals with liability of servants or agents to profession tax, in the circumstances mentioned therein. Here again, this section corresponds to S.93 of the Travancore Act and S.88 of the Cochin Act. S.117 of the new Act, the heading of which is 'interpretation', is a new provision; and there was no provision corresponding to it, either in the Travancore or Cochin Acts. Here again, this section corresponds to S.93 of the Travancore Act and S.88 of the Cochin Act. S.117 of the new Act, the heading of which is 'interpretation', is a new provision; and there was no provision corresponding to it, either in the Travancore or Cochin Acts. It is necessary to extract the section itself, as certain contentions have been raised by learned counsel for the petitioner. That Section is as follows: "117. Interpretation.-- (1) The expression "transacts business" in S.110 shall be deemed to include the doing of acts or business of whatever nature whether isolated or not such as soliciting, obtaining or transmitting orders or buying, making, manufacturing, exporting, importing, receiving, transmitting or otherwise dealing with goods. (2) Where for the purpose of transacting business within the municipality, a company or person has an office or an agent or firm to represent it or him, the company or person shall be deemed to transact business within the municipality whether or not such office, agent or firm has power to make binding contracts on behalf of the company or person; and the person in charge of such office or the agent or firm, as the case may be, shall be liable for the tax payable by the company or person. (3) A company or person otherwise liable to profession tax under S.110 shall not cease to be liable to such tax by reason only of its or his head office or the place from which its or his business is controlled being situated outside the municipality or by reason only of the fact that its or his transactions are closed outside the municipality." In particular, it may be stated that according to Mr. P. K. Kurien, learned counsel for the petitioner, by virtue of this interpretation given in S.117(1) to the expression "transacts business" in S.110, even isolated or casual transactions are sought to be roped in; which was not the case either under the Travancore Act or the Cochin Act or the relevant rules bearing on that aspect. This is one of the aspects that has no doubt been emphasised by learned counsel for the petitioner. 17. The only other section in the new Act that requires to be noted is S.150, which deals with the application of Schedule 2. This is one of the aspects that has no doubt been emphasised by learned counsel for the petitioner. 17. The only other section in the new Act that requires to be noted is S.150, which deals with the application of Schedule 2. That Section is to the effect that the rules and tables embodied in Schedule 2 shall be read as part of this Chapter, namely Chap.6, that means, Chap.6, wherein I have already stated, the various other provisions regarding the jurisdiction of the municipal council to levy and collect tax on profession will be found. Therefore, it will be seen that all matters referred to in Schedule 2, as well as the rules and tables occurring therein are to be read as part of Chap.6; that is, they form part of the said chapter, and, in turn form part of the statute itself. 18. Then it is necessary to refer to certain rules, occurring in Schedule 2, namely the Taxation and Finance Rules. Schedule 2 deals with taxation and finance. Part I relates to taxation rules. The relevant rules are to be found in rules 19, 20 and 21. R.19 occurs under the heading "Assessment of the profession tax". R.19(1) gives a table of the classes, into which companies and persons, for the purpose of assessment to the profession tax, are to be divided; and the maximum half yearly tax that can be levied under each class. But the point to be noted in sub-r.(1) of R.19, is that the maximum half yearly tax, leviable in respect of the first class mentioned in the table, namely on persons or companies, whose half yearly income is more than Rs. 15,000/- is only Rs. 125/-; that is, the total liability for profession tax in respect of such persons or companies, will be only Rs. 250/- per annum, and that is an amount which does not exceed the limit prescribed in clause (2) of Art.276 of the Constitution. 15,000/- is only Rs. 125/-; that is, the total liability for profession tax in respect of such persons or companies, will be only Rs. 250/- per annum, and that is an amount which does not exceed the limit prescribed in clause (2) of Art.276 of the Constitution. There is a proviso to sub-r.(1) of R.19, which is as follows: "Provided that if in the financial year immediately preceding the commencement of the Constitution of India, any municipality was imposing profession tax at a rate higher than two hundred and fifty rupees per annum and continued to levy the tax at such higher rate immediately before the commencement of this Act, such municipality may continue to levy profession tax at such rate." A perusal of the proviso to sub-r.(1) of R.19, extracted above, will show that it is more or less identical with the proviso occurring in clause (2) of Art.276 of the Constitution, but with the addition, namely that the levy must have been continued at the higher rate immediately before the commencement of Kerala Act XIV of 1961 itself. But for that, the proviso to R.19(1) of Act XIV of 1961 is more or less identical with what is stated in the proviso to clause (2) of Art.276. The other matters referred to in R.19, namely sub-r.(2) and (3), need not be adverted to for the present purpose. It may also be stated that R.19(1) of the new Act corresponds to R.16(1) of the Taxation and Finance Rules occurring in Schedule 2 to the Travancore District Municipalities Act, and R.16 occurring in the Taxation and Finance Rules occurring in the Cochin Municipal Act. 19. R.20 of the Taxation and Finance Rules in the new Kerala Act XIV of 1961, which corresponds to R.17 of the Taxation and Finance Rules in the Travancore District Municipalities Act and R.17 of the Cochin Act, is a sort of deeming provision. That rule states that a company or person shall be deemed to have transacted business and a person shall be deemed to have exercised a profession, art or calling, or held an appointment within the municipality, if such company or person has an office or place of employment within such municipality. I had already occasion to consider the effect of the deeming provision occurring in rule. I had already occasion to consider the effect of the deeming provision occurring in rule. 17 of the Taxation and Finance Rules in Schedule 2 of the Travancore District Municipalities Act, in my Judgment rendered in O. P. 1342/1962. 20. R.21 of the new Act, again, is a provision similar to what was contained in R.18 of the Taxation and Finance Rules in Schedule 2 of the Travancore District Municipalities Act and R.18 in the Taxation and Finance Rules in the Cochin Municipal Act, where, there is no controversy, no provision similar to the original proviso to R.18(2) in the Travancore Act was ever present. Considerable controversy is raised by learned counsel for the petitioner regarding the validity of the proviso to R.21 (2) of the Taxation and Finance Rules contained in the Kerala Act, Act XIV of 1961. A company or person transacting business in any half year exclusively within the area of a single municipality, and a company or person transacting business, other than money lending, partly in the area of a municipality and partly outside such area, have been dealt with under sub-r.(1) and (2) respectively of R.21. So far as sub-r.(2) of R.21 is concerned, after stating as to how exactly a person or company transacting business partly in the area of a municipality, and partly outside such area, is to be assessed, there is also a proviso to sub-r.2 of R.21, which is to the following effect: "Provided that in the case of a company or person assessable to income tax, the total profits earned by the company or person as disclosed by the income tax assessment for the year comprising the half year for which the profession tax is to be levied, shall be divided in the proportion of the turnover of the business of the company or person in the municipality and outside for purposes of assessment to profession tax." Under the proviso extracted above, it will be seen that in the case of a company or person assessable to income tax, the total profits earned by the company or person assessable to income tax for the year comprising the half year for which the profession tax is to be levied, is to be divided in the proportion of the turnover of the business of the company or person in the municipality and outside for the purposes of assessment to profession tax. 21. 21. This proviso to R.21(2) of the Taxation and Finance Rules occurring in Schedule 2 of the Kerala Act, XIV of 1961, has come up for criticism at the hands of the learned counsel for the petitioner. According to the learned counsel, if the Kerala Act XIV of 1961 is to be considered as a new Act, then an assessment under the proviso to R.21(2) will exceed the limit prescribed by clause (2) of Art.276 of the Constitution and so the proviso will have to be struck down. Alternatively, the learned counsel urged that if under the new Act, it is considered to be a continuation of the old levy by virtue of proviso to Art.276(2) read with the proviso to R.19(1) of the Taxation and Finance Rules in the Kerala Act XIV of 1961, then it suffers from the infirmity that such a proviso, which originally existed as a proviso to R.18(2) of the Taxation and Finance Rules in the Travancore District Municipalities Act, was struck down by the Travancore Cochin High Court, and the attempt made to revive it by a notification in the first instance and by a validating Act later as again not met with the approval at the hands of this Court, as will be seen by the decision reported in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ). That decision was also approved of by a recent Full Bench decision of this Court in Writ Appeal No. 5 of 1962 (Since reported in Commissioner, Quilon Municipality v. Harrisons & Crossfield Ltd. ( 1963 KLJ 1007 ). That is an aspect again which will have to be dealt with later. In this connection I may also state that Mr. V. K. K. Menon, learned counsel for the Municipality in question, and all the learned counsel appearing for the other municipalities and also the learned Government Pleader, have attempted to sustain the Proviso. According to them there is nothing to indicate that the levy on the basis of the proviso to R.21(2) will in any manner result in the tax being levied at a rate higher than the limit of Rs. 250/- as envisaged by Art.276(2). According to them there is nothing to indicate that the levy on the basis of the proviso to R.21(2) will in any manner result in the tax being levied at a rate higher than the limit of Rs. 250/- as envisaged by Art.276(2). The learned counsel for the respondents have also taken up the position that in any event the decision of this Court either in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ) or the judgment of the Full Bench in W. A. 5/62 ( 1963 KLJ 1007 ) have not become final because the matter is pending adjudication at the hands of the Supreme Court. 22. I have broadly indicated the scheme of Kerala Act XIV of 1961 as well as the relevant rules bearing on the points that arise for consideration before this Court. I have also indicated that the first contention of Mr. P. K. Kurien, learned counsel for the petitioner is that Kerala Act XIV of 1961, being a new Act and a post Constitution enactment, it is bound to conform to the provisions of Art.276(2). So far as the proposition goes, there can be no controversy that any levy of profession tax, for the first time after 26-1-1950 must satisfy the requirements and limitation contained in clause (2) of Art.276. But in what manner this legislation contravenes the provisions of Art.276(2), is a matter which requires to be investigated by this court. So far as that is concerned, according to Mr. P. K. Kurien, learned counsel for the petitioner, there is a very radical departure effected by S.117 of the new Act where under transactions which are not considered either as business transacted or doing of any business whatever whether isolated or not, such as soliciting etc., are sought to be roped in under the existing legislation by virtue of the interpretation clause occurring in S.117. The learned counsel also urged that the proviso to R.21(2) of the Taxation and Finance Rules occurring in Schedule 2 of Act XIV of 1961 will also clearly stand that if that basis is adopted the levy, assessment and collection of profession tax will far exceed the limit fixed in Art.276(2). Mr. V. K. K. Menon, learned counsel appearing for the Quilon Municipality and Mr. Mr. V. K. K. Menon, learned counsel appearing for the Quilon Municipality and Mr. S. Narayanan Potti, appearing for the Alleppey Municipality, have urged that the provisions contained in S.117 of the new Act do not create any additional liability, so to say, on the petitioners; and the contention of the learned counsel for the petitioner that the provisions contained in section. 117 particularly wherein isolated transactions are also sought to be brought in under the expression "transacts business" so as to create liability, must always be considered to have been included in the provisions that were in force even at the material time, namely under the Cochin and Travancore Acts concerned. Both the learned counsel for the respondents also urged that in any event none of the provisions in those statutes, excludes these types of transactions, namely isolated transactions being not considered as amounting to "transacting business" as is now sought to be urged by the learned counsel for the petitioner. 23. So far as this aspect is concerned, I am not inclined to accept the contention of the learned counsel for the petitioner that the provisions contained in S.117 of Kerala Act XIV of 1961 make any radical departure from the position as it existed in respect of transacting of business either in the Travancore or Cochin Municipal areas is concerned. I have already indicated that the provisions contained in S.91 of the Travancore District Municipalities Act made every company, which transacts business in the Municipality for the period mentioned therein, liable for payment of the profession tax. The expression used in the corresponding section of Kerala Act XIV of 1961, namely S.110, is also the same. It will also be seen that the manner in which the assessment is to be made is also indicated in rules 18(1) and 18(2) read with R.18(3) of the Taxation and Finance Rules occurring in Schedule 2 of the Travancore District Municipalities Act. So far as I could see, there is absolutely no exemption granted under the material provisions of either the Cochin and Travancore statute or the relevant rules thereunder, excluding an isolated transaction being considered as not amounting to "transacting business", though, no doubt, such a transaction is also sought to be included in the expression "transacts business" by virtue of the interpretation Section, namely S.117 of the new Act. In my view, the various matters "mentioned in the interpretation Section, namely S.117, are all matters which could under law be considered to be included in the expression "transacts business" as that expression stood even in S.91 of the Travancore District Municipalities Act, 1116, or in S.86 of the Cochin Municipal Act, 1113, and the relevant rules thereunder. Therefore, the fact that the Legislature chose to enact a specific provision like S.117 in Kerala Act XIV of 1961, cannot certainly mean that the Act offends the restriction placed by Art.276(2). Even assuming that it is so, the position, in my view, so far as the new Act is concerned, is made clear by R.19(1) of the Taxation and Finance Rules, that the maximum amount that is leviable as profession tax is only Rs. 250/- per annum. If that is so, whatever may be the items that may be included in the expression "transacts business", it cannot certainly be stated that there is any liability on the part of any assessee to pay profession tax over and above the limit prescribed in the rule; and therefore there is 'no question of the provisions of Art.276 (2) of the Constitution being violated either. I have already indicated that there is no question of S.117, altering the position as it stood under the Travancore District Municipalities Act and the Cochin Municipal Act. Therefore this contention of the learned counsel for the petitioner cannot certainly be accepted. 24. No doubt, I am aware of the contention of the learned counsel for the petitioner regarding attack made as against the proviso to R.21(2) of the Taxation and Finance Rules occurring in the new Kerala Act XIV of 1961. So far as that is concerned, in my view, notwithstanding the very serious attempt made by learned counsel for the various Municipalities, as well as by the learned Government Pleader, to sustain the validity of that rule and attempt to distinguish the decision of this Court in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ) and in Writ Appeal 5/1962 ( 1963 KLJ 1007 ), in my view, the contention of the learned counsel for the petitioner will have to be accepted. 25. Originally there was a proviso to R.18(2) of the Taxation and Finance Rules occurring in Schedule 2 of the Travancore District Municipalities Act, 1116. 25. Originally there was a proviso to R.18(2) of the Taxation and Finance Rules occurring in Schedule 2 of the Travancore District Municipalities Act, 1116. That proviso has been extracted at page 974 of the Division Bench judgment of this Court reported in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ). That proviso, there is no controversy, was challenged, and it was set aside even by the Travancore Cochin High Court. There was an attempt made by the Government to revive that proviso in a modified form by executive action by the issue of a notification. There was also a further attempt made to revive it by passing a validating Act. Both, those attempts did not meet with any success. These matters have been very elaborately discussed by Ansari C. J. sitting with Govinda Menon J. in the decision already referred to, namely Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ). As the matter has been considered at fairly considerable length in that judgment tracing the origin of the statute and various attempts made by the Government in one form or other I do not think it necessary to cover the ground over again in these proceedings. It will be seen that based upon the judgment of the Division Bench in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ), I had occasion to reject the contention regarding its validity, advanced before me in O. P. No. 981 of 1960. That judgment of mine went up in appeal in Writ Appeal No. 5/62. Evidently the correctness of the Division Bench judgment in Harrisons & Crossfield v. Commissioner ( 1961 KLJ 971 ) was attempted to be canvassed; and that necessitated the matter being referred to a Full Bench. The Full Bench by its judgment dated 26th August 1963, has completely approved the principles laid down by the Division Bench in Harrisons & Crossfield v. Commissioner (1961 KLJ 961). My Lord the Chief Justice has considered the original proviso that had found a place in Sub-r.(2) of R.18 of the Taxation and Finance Rules occurring in the Travancore District Municipalities Act, as well as the subsequent attempts made by the State to revive that proviso in some form or other. My Lord the Chief Justice has considered the original proviso that had found a place in Sub-r.(2) of R.18 of the Taxation and Finance Rules occurring in the Travancore District Municipalities Act, as well as the subsequent attempts made by the State to revive that proviso in some form or other. Ultimately the learned Chief Justice winds up the discussion on this aspect by stating that the amendments introduced by the notification dated 15th February 1956 and validated by Act XIV of 1958, are amendments which go far beyond the 'formal alterations necessitated by the replacement of the Travancore Income Tax Act, 1121 (M.F.) by the Indian Income Tax Act, 1922, with effect from 1st April 1950. The learned Chief Justice also states that the "alterations do not merely preserve the old tax; they rope in the entire profits of the assessee from the whole of the Indian Union for the purpose of calculation". And therefore the learned Chief Justice expressed the view that "the substitution of the words "whole of the Indian Union" for the words "whole State", can operate to the detriment of the assessee, and we cannot but conclude that Messrs. Harrisons & Crossfield Ltd. v. Commissioner ( 1961 KLJ 971 ) was rightly decided". 26. What was originally contained in the proviso to sub-r.(2) of R.18 of the Taxation and Finance Rules occurring in the Travancore District Municipalities Act, 1116 and which proviso was struck down, and notwithstanding the attempts made by the State Government unsuccessfully to revive the said proviso in the manner indicated above, in my view, the same proviso in substance has been brought into the Kerala Municipalities Act, Act XIV of 1961, by incorporating it as a proviso to R.21(2) of the Taxation and Finance Rules, occurring in Schedule 2 to the said Act. Here again I may state that, as to how and why the proviso was invalid has been discussed in considerable detail in the two judgments referred to by me earlier, namely the Full Bench decision in W. A. 5/62 ( 1963 KLJ 1007 ), as also the Division Bench decision reported in Harrisons & Crossfield Ltd. v Commissioner ( 1961 KLJ 971 ); and I do not think it necessary to traverse the ground over again. I am bound by those Full Bench and Division Bench decisions; and, therefore, it follows that the attack levelled as against the validity of sub-r.(2) of R.21 of the Taxation and Finance Rules occurring in Schedule 2 of the Kerala Municipalities Act, 1960 (Act XIV of 1961), has to be upheld and Sub-r.(2) of R.21 has to be struck down as offending Art.276(2) of the Constitution. 27. No doubt, I am aware of the contention that has been raised in particular by Mr. S. Narayanan Potti, learned counsel appearing for the Alleppey Municipality in these proceedings, that the assumption of the Full Bench in Writ Appeal 5/62 that the application of the proviso by the Validating Act, which was under consideration before them, would result in the increase in the tax liability and therefore it contravenes the provisions of Art.276(2) of the Constitution is not correct. I am not inclined to go into the very aspects that have been considered and rejected in the first instance by the Division Bench in Harrisons & Crossfield Ltd. v. Commissioner ( 1961 KLJ 971 ) and later by the Full Bench in Writ Appeal No. 5/62 ( 1963 KLJ 1007 ). Therefore, it is not open to me to go into that aspect in these proceedings, in view of the final pronouncement by the Full Bench on this aspect in Writ Appeal 5/1962. The result is that this contention of Mr. P. K. Kurien, learned counsel for the petitioner regarding the invalidity of the proviso to sub-r.(2) of R.21 occurring in the Taxation and Finance Rules in Schedule 2 of the Kerala Municipalities Act, Act XIV of 1961 will have to be accepted, and that proviso will have to be struck down and any assessment in respect of persons or companies transacting business partly within the Municipal area and partly outside it, will have to be made without invoking the provisions of the said proviso to R.21(2) of the Taxation and Finance Rules. 28. The second contention urged by Mr. P. K. Kurien, learned counsel for the petitioner, as I mentioned earlier, is that it cannot certainly be stated, by reference to the provisions of the Kerala "Municipalities Act, Act XIV of 1961, that there is a continuation of the levy, by the municipalities, of profession tax at a rate higher than Rs. 28. The second contention urged by Mr. P. K. Kurien, learned counsel for the petitioner, as I mentioned earlier, is that it cannot certainly be stated, by reference to the provisions of the Kerala "Municipalities Act, Act XIV of 1961, that there is a continuation of the levy, by the municipalities, of profession tax at a rate higher than Rs. 250/-; in which case alone the proviso to Art.276(2) of the Constitution can be invoked. Here again, the learned counsel referred me to the provisions of S.117 of the Kerala Act XIV of 1961, in support of his contention that by expanding or enlarging the definition of the expression "transacts business", there has been a modification of the original statute and increase in the tax liability, I which the State Legislature is not entitled to do. Quite naturally, the learned counsel again relied upon, in support of this contention, on the Division Bench judgment of this Court in Harrisons & Crossfield Ltd. v. Commissioner ( 1961 KLJ 971 ). I have already considered earlier in this judgment the exact scope and nature of the provisions contained in S.117 of Kerala Act XIV of 1961. Therefore, so far as the contention based upon that Section is concerned, it is not possible for me to accept the stand taken by the learned counsel for the petitioner. 29. The learned counsel for the petitioner then referred me to the provisions of R.19(1) of the Taxation and Finance Rules in Schedule 2 of Kerala Act XIV of 1961. The learned counsel urged that neither the provisions contained in S.2 of the Act, nor the provisions contained in the proviso to R.19(1) of the Taxation and Finance Rules in the new Act, can be considered to express a clear and unequivocal intention of the State Legislature to authorise any of the municipalities concerned to continue the levy of tax at a rate higher than Rs. 250/-. So far as this aspect is concerned, no doubt Mr. P. K. Kurien, learned counsel for the petitioner has placed considerable reliance upon the wording of the second proviso to S.2 of the new Act wherein the expression "taxes, rates and fees imposed or assessed" appears. According to Mr. P. K. Kurien, learned counsel for the petitioner, those expressions take in only taxes, which have been already imposed as against individuals by the municipalities concerned. According to Mr. P. K. Kurien, learned counsel for the petitioner, those expressions take in only taxes, which have been already imposed as against individuals by the municipalities concerned. That is, according to the learned counsel, if there are any arrears outstanding in favour of the municipalities by virtue of such imposition or assessment, those impositions and assessments will be saved, but that provision does not certainly indicate that there is a power given to the municipalities concerned to continue the same levy under the new Act. So far as this aspect is concerned, the learned counsel for the respondent municipalities have drawn my attention to the provisions contained in S.150 of Act XIV of 1961. I have already referred to S.150 wherein it is clearly stated that the rules and tables embodied in Schedule 2 shall be read as part of Chap.6 of the Act. I have also indicated that the levy and assessment of the various taxes find a place in Chap.6. 30. Even apart from this, it will be seen that a similar question arose for consideration before the Supreme Court in the decision reported in Messrs. Ramakrishna v. Janpad Sabha ( AIR 1962 SC 1073 ), wherein the learned Judges had occasion to consider the scope of the expression "continue to be levied" occurring a in S.143(2) of the Government of India Act, 1935. In particular, the learned Judges had to consider in that case an amendment, effected by the State Legislature, by the Amending Act of 1949, which is extracted at p. 1076 of the report. A perusal and comparison of the section which the learned Judges had to consider in that case, along with the second proviso to S.2 of Kerala Act XIV of 1961, in my view, leaves no room for doubt that the taxes, rates and fees imposed under the various provisions which had been repealed under S.2, can be considered to be continued under the new Act also. But whatever it is, learned counsel urged that in the Supreme Court case the particular provision that has been referred to, namely the new clause (b) of the proviso to S.192 of the Act in question, was not as such discussed or debated by the Supreme Court from the point of view, and for all purposes the learned Judges proceeded on the basis that if clause (2) of S.143, as amended had found a place in the original Local Government Act, the levy by the Sabha must be considered to have been valid. Therefore, the learned counsel urged that the Supreme Court had no occasion to consider this aspect specifically. 31. No doubt, prima facie the learned counsel is perfectly justified in that contention. But certainly if the argument that is now advanced, namely that the expression occurring in the particular provision which was under consideration by the Supreme Court was not capable of being construed as continuing a levy, in my view, that aspect would certainly have not been missed by the various counsel appearing in that case. Therefore, in view of the fact that the provisions contained in the second proviso to S.2 of the Kerala Act XIV of 1961 are almost identical with the provisions, the Supreme Court had to consider, in my view, it must be considered that under the Kerala Act, there has been a continuation of the levy and assessment at the rates prescribed under the various enactments that had been repealed by S.2 itself. Even otherwise, it will be seen that inasmuch as under S.150 of the Kerala Act XIV of 1961 the various rules and rates occurring in Schedule 2 thereof, form part of Chap.6 of the Act, it must be held that the State Legislature itself has, by enacting a specific provision in R.19 of the Taxation and Finance Rules in Schedule 2, by incorporating the proviso to R.19(1), clearly indicated that the old levy can be continued by the various municipalities, under the circumstances mentioned therein, namely if the levy at the higher rate was imposed in the financial year immediately preceding the Constitution and was being continued till the passing of the new Act itself. As pointed out by Mr. As pointed out by Mr. V. K. K. Menon learned counsel appearing for one of the municipalities, it will be seen that the jurisdiction of the State Government to pass a legislation of this type is beyond controversy; and therefore, by enacting that rule, there is a legislation passed by the State Government itself authorising such of the Municipalities as were levying a higher rate, to continue to levy the same rate as provided therein. I have already indicated that the proviso to R.19(1) is more or less similar to the proviso to clause (2) of Art.276 of the Constitution. 32. Mr. K. P. Abraham, learned counsel for the petitioners in O. P. 940 and 942 of 1962, urged the contention that inasmuch as Kerala Act XIV of 1961 is a consolidated enactment, it could not continue the repealed Acts, namely the Cochin Municipal Act, the Travancore District Municipalities Act and the Madras District Municipalities Act. I understood the learned counsel to urge that unless there is a separate enactment passed by the Kerala Legislature dealing differently with respect to each of these three enactments referred to above, there cannot be a common piece of legislation amending or modifying or altering any of the provisions contained in those enactments. This large contention is not certainly acceptable to me. But the learned counsel urged that the scheme of taxation of companies adopted in the Cochin Act and the Travancore Act was originally different and therefore there cannot be a consolidation, or unification of those levies by a single enactment, namely the Kerala Act XIV of 1961. No doubt, in this connection Mr. K. P. Abraham, learned counsel for the petitioner in those two writ petitions, referred me to R.16(1) of the Taxation and Finance Rules occurring in Schedule 2 of the Travancore District Municipalities Act, wherein the various classes mentioned in the table deal with both companies and persons together. The learned counsel also pointed out that there is a proviso to R.16(1) wherein the companies are made liable to an additional levy in the circumstances mentioned therein, and no such provision is to be found in respect of persons. Similarly in the Cochin Municipal Act, Mr. K. P. Abraham pointed out, that Schedule I applied to companies and that it is a different type of levy. Similarly in the Cochin Municipal Act, Mr. K. P. Abraham pointed out, that Schedule I applied to companies and that it is a different type of levy. According to the learned counsel Schedule 2 of the Cochin Act dealt separately with levy and assessment to profession tax on persons. Therefore, the learned counsel urged that the classification in the Cochin Act regarding the assessment on companies is on a totally different basis and principle, and it is radically different from the scheme of the Travancore Act. The learned counsel again drew my attention to the provisions contained in the Madras Act, particularly in Schedule IV thereof, dealing with Taxation and Finance, wherein again, no distinction has been made in respect of the assessment on companies and persons, without the special provision similar to the proviso occurring in R.16(1) of the Taxation and Finance Rules in the Travancore District Municipalities Act. Therefore the learned counsel urged that in view of the different manner in which these three repealed enactments were dealing with assessment on persons and companies in the three different areas of the State, the consolidated Act cannot certainly be considered to have taken into consideration the various schemes in respect of levy and assessment to profession tax in respect of those matters in the new Act itself. 33. I am not inclined to accept this contention of Mr. K. P. Abraham learned counsel in these writ proceedings. No doubt the decision of the Supreme Court in Messrs. Ram Krishna v. Janpad Sabha ( AIR 1962 SC 1073 ) emphasises that in order to enable the higher rate of levy being continued, there must be identity in the incidence of taxation that is sought to be continued. And the expression "the incidence of taxation" has again been discussed by the Supreme Court as comprising three different items, namely (1) subject matter of tax, (2) taxable event, and (3) rate of duty. If these are satisfied, it is the view of the Supreme Court, that it must be considered that any tax that is levied on that basis is one continuing the old rate of tax itself. If these are satisfied, it is the view of the Supreme Court, that it must be considered that any tax that is levied on that basis is one continuing the old rate of tax itself. The question in this case is as to whether by the method adopted in Schedule 2 of Kerala Act XIV of 1961, it can be said that the incidence of taxation regarding the assessment of profession tax on companies has been in any manner altered or differentiated. 34. In my view, having due regard to the provisions of the Cochin Municipal Act, the Travancore District Municipalities Act, and the Madras District Municipalities Act, referred to by Mr. K. P. Abraham, and also having due regard to the material provisions bearing on that matter in the Kerala Act XIV of 1961 itself, the three tests laid down by the Supreme Court regarding the subject matter of the taxation, the taxable event, and the rate of duty, are all satisfied in this case. The subject matter of the taxation under the Kerala Act is profession tax. The taxable event is "transacting of business'. And the rate of duty is also specified. I do not find any material distinction between the scheme adopted in the new Kerala Act regarding the taxation on companies and the scheme adopted in all the three enactments referred to above. Therefore, this contention of Mr. K. P. Abraham cannot also be accepted. 35. Therefore, the position ultimately is that the contention of Mr. P. K. Kurien learned counsel for the petitioner that the provisions of the Kerala Municipalities Act, Act XIV of 1961 and the relevant rules, except the proviso to R.21(2) contravene the provisions of clause (2) of Art.276 of the Constitution cannot certainly be accepted.,. The further contention of the learned counsel for the petitioner that it cannot certainly be stated that the provisions of Kerala Act XIV of 1961 authorise continuation of levy of profession tax at the higher rate that was levied under the Cochin Municipal Act and the Travancore District Municipalities Act, cannot also be accepted, In which case, it clearly follows that in respect of levy and assessment of profession tax as against companies at a rate higher than Rs. 250/- the provisions of proviso to clause (2) of Art.276 of the Constitution, come in full play. 250/- the provisions of proviso to clause (2) of Art.276 of the Constitution, come in full play. If that is so, the assessment in respect at any rate of those municipalities which are protected by the proviso to clause (2) of Art.276, are entitled to levy a higher rate than provided under clause (2) of Schedule 2 of Kerala Act XIV/61 is struck down. 36. Now I will deal with the merits arising for decision in each one of the writ petitions. O. P. No. 859/1962 37. The petitioner company in this writ petition, challenges the order of assessment to profession tax for the second half year of 1961-62, made by the Ernakulam Municipal Council, under Ext. P. 3(a) dated 5-3-1962. Inasmuch as very many of the points discussed above have been decided as against the petitioner company, the only question, that remains for consideration is regarding the validity of the levy of surcharge in the sum of Rs. 113/-. In view of my decision in O. P. No. 1342 of 1962 regarding the invalidity of S.4 of the Kerala Surcharge on Taxes Act, 1957 (Act XI of 1957), it follows that the surcharge levied under Ext. P. 3(a) will have to be cancelled. In all other respects the order of assessment will stand. 38. The writ petition is allowed to the extent indicated above, and dismissed in other respects. Parties will bear their respective costs. O. P. No. 904/1962 39. The only point that arises for consideration in this writ petition is regarding the levy of surcharge under the notice Ext. P. 3 dated 5-3-1962 issued by the Alleppey Municipal Council. Following the decision rendered by me in O. P. 1342/62, the levy of surcharge is declared illegal. In all other respects the order of assessment will stand. 40. The writ petition is allowed to the extent indicated above and dismissed all other respects. Parties will bear their costs. O. P. No. 1919/62 41. The only point to be considered in this writ petition is regarding the levy of surcharge as against the petitioner under Ext. P. 2 dated 10-2-1962. No doubt, it has been confirmed in revision also, by the order Ext. P. 4 dated 30-3-1962. In view of my decision in O. P. 1342/62, it follows that no surcharge under S.4 of the Kerala Surcharge on Taxes Act, 1957 (Act XI of 1957). P. 2 dated 10-2-1962. No doubt, it has been confirmed in revision also, by the order Ext. P. 4 dated 30-3-1962. In view of my decision in O. P. 1342/62, it follows that no surcharge under S.4 of the Kerala Surcharge on Taxes Act, 1957 (Act XI of 1957). Therefore the levy of surcharge alone under Ext. P. 2, as against the petitioner is set aside and quashed. In all other respects the order of assessment is confirmed. 42. The writ petition is allowed to the extent indicated above and dismissed in all other respects. O. P. No. 2768/1962 43. The Assessment relates to the first half year 1961-62 for profession tax under the Kerala Municipalities Act, Act XIV of 1961. Here again, the only point that requires interference by this court is regarding the levy of surcharge under S.4 of Kerala Act XI of 1957. In view of my judgment in O. P. 1342/62, the levy of surcharge alone is set aside and in all other respects the order of assessment is confirmed. 44. The writ petition is allowed to the extent indicated above and dismissed in all other respects. Parties will bear their costs. O. P. Nos. 940 and 942/62 45. Here again, the only aspect that requires interference at the hands of this Court, is the levy of surcharge under Kerala Act XI of 1957. No doubt, Mr. K. Velayudhan Nair, learned counsel for the respondent Municipality in both these matters, has stated that the validity of the levy of surcharge as such has not been raised by the petitioners in these proceedings. But, in my view, in view of the fact that these two writ petitions have been taken up along with the other connected writ petitions, where the levy of surcharge is challenged, and in view of the further fact that I have upheld the objection regarding the validity of the Kerala Surcharge on Taxes Act, 1957, in my judgment in O. P. 1342/62, it follows that the levy of surcharge as against the respective petitioners under the orders under attack cannot certainly be sustained. To this limited extent only, the writ petitions are allowed, and in all other respects they are dismissed. Parties will bear their costs. O. P. No. 2479/62 46. In this writ petition Mr. To this limited extent only, the writ petitions are allowed, and in all other respects they are dismissed. Parties will bear their costs. O. P. No. 2479/62 46. In this writ petition Mr. P. K. Kurien, learned counsel for the petitioner, challenges the order of assessment to profession tax made as against the petitioner company for the second half year of 1961-62, under the Kerala Municipalities Act, 1960 Act XIV of 1961. 47. The order of assessment itself is Ext. D wherein the Commissioner of the Quilon Municipal Council has stated that the company is transacting business partly, in the Municipal area and partly outside. That is correct; in which case the assessment is to be made under R.21(2) of the Taxation and Finance Rules. But the assessing authority is of the view that the rule that has to be applied in assessing the petitioner company is 21(2) proviso of Schedule 2 of the Kerala Municipalities Act, XIV of 1961. On this basis the Commissioner makes the assessment ultimately. 48. Though in Ext. D the assessing authority states that the proviso to R.21(2) will apply, ultimately it is not very clear as to whether any assessment has been made on the basis of the income tax assessment as against the company, as provided in R.21(2) proviso of the Taxation and Finance Rules, because the petitioner company has taken up the position in Ext. B that even on the basis that the proviso to R.21(2) applies, no assessment of the petitioner company to income tax for the year 1961-62 is as yet over and that it is not in a position to furnish the income assessed for the year by the Income Tax authorities. That was mentioned by the company as early as 7th September 1962. 49. But whatever it is, the applicability of the proviso to R.21(2), Schedule II, of the Taxation and Finance Rules in the Act is no longer open to question, in view of the common judgment rendered by me earlier, declaring that the proviso to R.21 (2) of Schedule 2 of the Kerala Municipalities Act XIV of 1961 as illegal and void. If that is so, the Assessment as against the company, can only be made under R.21(2) of Schedule 2 of the Act without reference to the proviso which has been struck down. 50. The order under attack, Ext. If that is so, the Assessment as against the company, can only be made under R.21(2) of Schedule 2 of the Act without reference to the proviso which has been struck down. 50. The order under attack, Ext. D, will therefore have to be set aside. In making any fresh assessment order, the authorities will have to take note of the fact that the proviso to R.21(2) of Schedule 2 of Act XIV of 1961 will have no application. No surcharge also can be levied as against the petitioner company. The writ petition is allowed subject to what is indicated above. Parties will bear their costs. O. P. No. 2482/1962 51. In this writ petition Mr. P. K. Kurien learned counsel for the petitioner challenges the order of assessment to profession tax for the second half year of 1961-62, evidenced, by Ext. D dated 24-9-1962, by the Commissioner of the Quilon Municipality, under the Kerala Municipalities Act, 1960, Act XIV of 1961. 52. It will be seen that the Commissioner of the said Municipality appears to have sent a notice dated 14-3-62, to the petitioner company, asking the latter to submit the return of income for the half year ended 31-3-1962. That is adverted to by the petitioner company in its reply dated 28-4-1962. In that reply the company, after acknowledging receipt of the notice dated 14-3-1962, states that the income of the company is solely derived from the cultivation of tea and rubber on its estates situated in the various parts of Kerala and Madras States and the sales of its produce are conducted only at places other than Quilon. The company also states that it does not derive any income from any source within the Municipal limits of Quilon and therefore it is submitting the return accordingly in respect of the years in question. The return is stated to be practically a nil return. 53. The Commissioner, under Ext. B dated 27-8-1962, sends a communication to the petitioner company stating that the contentions raised by the company are not acceptable, in the light of R.20 of Schedule 2 of the Kerala Municipalities Act, which, it may be stated at this stage, is almost identical with R.17 of the Taxation and Finance Rules occurring in the Travancore District Municipalities Act, 1116. Then the effect of R.20 of the Taxation and Finance Rules in Kerala Act XIV of 1961 is stated by the Commissioner, namely that a company or person shall be deemed to have transacted business or exercised profession etc. in the town, if such company or person has an office within the Municipality. On this basis the Commissioner again says that the petitioner company is liable to be assessed. The Commissioner ultimately makes a request to the company to produce a copy of the Income Tax Assessment order for the assessment year 1961-62. The Commissioner also states that if the assessment order is not available, the total turnover of business, under R.21(3) of Schedule 2 of the new Act, in the Indian Union may be furnished. 54. The petitioner company again sends a communication dated 10th September 1962, evidenced by Ext. C, wherein various matters are referred to. The company states that their income is solely derived from cultivation of rubber and tea on their estates situated in the various places of Kerala and Madras States and that the sale of the produce is conducted only at places other than Quilon. The company also reiterates that they do not derive any income from any source within the municipal limits of Quilon ; and on this basis the company states that no part of the said turnover is within the limits of the Quilon Municipality. The company then refers to their having several offices in India in its various estates, apart from its head office in London, and that the company is not liable to be assessed in view of the fact that the turnover within the Quilon Municipality for the period in question is nil. Then it adverts to the fact that even the tea and rubber sold in India are not sold within the limits of the Quilon Municipality. It also refers to the circumstances under which the tea and rubber are sold, and also gives the total turnover in respect of the sale of these two commodities for the half year ended 31-3-62. In particular the petitioner company has referred to transactions in tea to the value of Rs. It also refers to the circumstances under which the tea and rubber are sold, and also gives the total turnover in respect of the sale of these two commodities for the half year ended 31-3-62. In particular the petitioner company has referred to transactions in tea to the value of Rs. 21,68,254/- included in the above total turnover, and states that the contracts for sale in respect of that were made in London by the Head office of the company in London, with the representatives of the purchasers in London, and the delivery itself was effected at Mettuppalayam and Coimbatore in Madras State. After referring to all these circumstances, the company states that in view of the sales having been effected outside the limits of the Quilon Municipality they are not liable for the payment of any profession tax. 55. Then the company takes up the position that the scheme of Kerala Act XIV of 1961 indicates that in the case of purchase or sale, the turnover relating to the sale is to be included in the turnover of the place where the delivery is made, pursuant to the purchase or sale. Then again the company refers to various other sales, and ultimately says that the company is not liable at all to be assessed. No doubt, the company states that it is prepared to substantiate those statements if an opportunity is given for that purpose by the Commissioner. The petitioner company also takes up the position that inasmuch as the Travancore District Municipalities Act has been repealed by the Kerala Municipalities Act and the relevant rules, the provision which enables the authorities to levy a profession tax in excess of Rs. 250/- per annum on any person or company, is beyond the legislative competence of the State Legislature and is contrary to Art.276 of the Constitution. 56. The Commissioner then sends what may be called the assessment order Ext. D dated 24-9-1962 to the petitioner company. The Commissioner states in that communication that the contention of the company that it has no turnover within the Municipality and therefore not liable for assessment, is not tenable in view of S.110, 112 and 117, read with R.20 of Schedule 2 of the Kerala Municipalities Act. The Commissioner also refers in Ext. D to the fact that the company has not produced the income tax assessment order which was called for. The Commissioner also refers in Ext. D to the fact that the company has not produced the income tax assessment order which was called for. But the Commissioner states that inasmuch as the registered office of the company in India is situated at Quilon, the turnover so far as Indian business is concerned, should be associated with the Quilon office and therefore the exclusion of the turnover claimed by the petitioner company cannot be allowed. The Commissioner also takes up the position that the contention of the company that the municipality is not entitled to levy tax at a higher rate than Rs. 250/-, is not also acceptable to him. Ultimately under Ext. D the Commissioner assesses the petitioner company to profession tax in the sum of Rs. 4,456/- as well as to surcharge in the sum of Rs. 222.80, for the second half year of 1961-'62 for an half yearly income of Rs. 4,39,052, which again is stated to be arrived at on the basis of the turnover figures furnished by the company. Then the usual demand notice under Ext. E dated 24-9-1962 follows. 57. The contention of Mr. P. K. Kurien, learned counsel for the petitioner is that the assessing authority has proceeded on the basis that because the company has got an office at Quilon, the entire transactions which had taken place outside the Quilon municipal area must be considered to be turnover of the company at Quilon. This assumption, according to the learned counsel, is fallacious and erroneous, in view of the recent judgment rendered by me in O. P. No. 1342/62, wherein also more or less similar stand was taken by the municipality, and this court has rejected the stand taken by the municipality. Mr. Kurien also urged that the Commissioner has largely proceeded on the basis that the petitioner company is to be assessed under the proviso to R.21(2) of Schedule 2 of the new Act, Kerala Act XIV of 1961. That the learned counsel urged, is erroneous because that provision is invalid and has to be struck down. 58. Mr. Kurien also urged that the Commissioner has largely proceeded on the basis that the petitioner company is to be assessed under the proviso to R.21(2) of Schedule 2 of the new Act, Kerala Act XIV of 1961. That the learned counsel urged, is erroneous because that provision is invalid and has to be struck down. 58. Pausing here, it may be stated that in the common judgment rendered by me in this and other connected writ petitions, I have already dealt with the attack on the proviso to R.21(2) of Schedule 2 of the Kerala Municipalities Act, XIV of 1961, and after discussing the legal points arising for consideration I have accepted the contention of the learned counsel for the petitioners therein that the proviso to R.21(2) of the Kerala Act XIV of 1961 has to be struck down. Therefore the question of the applicability or otherwise of the said proviso does not come into the picture now. But whatever it is, the demand notice Ext. D has been issued long ago on the basis of the provisions existing in the statute. 59. Mr. P. K. Kurien, learned counsel for the petitioner, in my view, is perfectly well founded in his contention that the commissioner has largely proceeded on the basis that the turnover returned by the company in respect of the transactions outside the Quilon Municipality and in the Indian Union must be considered to be turnover of the company in Quilon as the company has its registered office in Quilon and must be considered to control all the business, is in my view, perfectly justified. No doubt Mr. V. K. K. Menon, learned counsel appearing for the respondent municipality urged that in view of the provisions contained in S.96, 110 and 112 and particularly S.117 of the new Act, the approach made by the Commissioner in this case is perfectly justified. 60. So far as S.96, 110 and 112 of the Kerala Municipalities Act XIV of 1961 are concerned, the contention based upon those sections need not ' detain me further, because they are Sections analogous to S.77, 91 and 93 of the Travancore District Municipalities Act, 1116. The effect and scope of these Sections have already been dealt with by me in the judgment rendered in an earlier writ petition, namely O. P. 982/60, which went up in appeal in Writ Appeal No. 84/62. The effect and scope of these Sections have already been dealt with by me in the judgment rendered in an earlier writ petition, namely O. P. 982/60, which went up in appeal in Writ Appeal No. 84/62. No doubt Mr. V. K. K. Menon learned counsel for the respondent 1 Municipality pointed out that the various observations made by me in the judgment in O. P. 982/60 as to the approach that is to be made by the Commissioner in the matter of making a fresh assessment, have been left open by the learned Judges in their judgment in Writ Appeal No. 84/62. But so long as my judgment, has not been reversed or the reasons given by me therein have not been disapproved by the appellate Bench, in my view, it is perfectly open to me to make the same approach that I adopted in O. P. 982/60. Therefore, the position in this case is that these contentions have already been considered by me in the other writ petition, namely O. P. 982/60, and they have also been adverted to by me in my judgment in O. P. 1342/62. Mr. V. K. K. Menon also attempted to place some reliance upon the provisions contained in R.20 of the Taxation and Finance Rules in Schedule 2 of the Kerala Act XIV of 1961; but that again, is identical with R.17 of the Taxation and Finance Rules occurring in Schedule 2 of the Travancore District Municipalities Act, Act XXIII of 1116, and the effect of that rule has also been considered by me in the previous decision. Therefore, it is not necessary for me to cover the same grounds in this writ petition. 61. But there is one point pressed before me by Mr. V. K. K. Menon learned counsel for the respondent Municipality, and that is one based upon S.117 of the Kerala Act XIV of 1961. In fact I have dealt with the contention regarding the validity of this Section taken by Mr. P. K. Kurien, learned counsel for the petitioner, in the common judgment in this and the other writ petitions. I have not accepted the contention of the learned counsel that S.117, though it is a new interpretation section does in any manner enlarge the provisions of the original statute, namely the Travancore District Municipalities Act or the relevant rules bearing on the same. I have not accepted the contention of the learned counsel that S.117, though it is a new interpretation section does in any manner enlarge the provisions of the original statute, namely the Travancore District Municipalities Act or the relevant rules bearing on the same. Therefore, as it is, the validity of S.117 has been affirmed. 62. Based upon S.117, Mr. V. K. K. Menon, learned counsel for the respondent urged that though the Municipal Council is bound by the judgment of this court in O. P. 1342/62 that it is not justified in treating the turnover that has accrued to the petitioner company by way of sale, manufacture, or otherwise, in the rest of the Indian Union nevertheless there is one other aspect that has to be investigated, namely as to whether the petitioner company was transacting "any other business within the area of the municipality." The learned counsel no doubt urged that the applicability of S.117 did not arise for consideration in O. P. 1342/62, because in that case the decision was given on the basis of the provisions contained in the Travancore District Municipalities Act and the relevant rules thereunder, and there was no provision similar to S.117 of the new Act in the Travancore Act. Therefore, according to Mr. V. K. K. Menon, if the petitioner company can be considered to be transacting any other business within the municipality as mentioned in R.21(3) of the new Act, the question as to whether the company was transacting any other business, will have to be considered in the light of the interpretation of the expression "transacts business" in S.117 of the Kerala Act. No doubt Mr. P. K. Kurien, learned counsel for the petitioner urged that this section will have no application whatsoever. According to him, the transactions of sale, manufacture etc., are all continuous or part of the same business transaction and therefore it cannot certainly be stated that the act of soliciting or obtaining or transmitting orders, even if it has been done by the petitioner company, cannot be considered to be a transaction different from sale or manufacture of those articles outside the Municipality. So far as this is concerned, I am not inclined to accept the approach sought to be made by the learned counsel for the petitioner. The provisions of S.117 of the new Act cannot be ignored. So far as this is concerned, I am not inclined to accept the approach sought to be made by the learned counsel for the petitioner. The provisions of S.117 of the new Act cannot be ignored. The legislature has chosen to define the expression "transacts business" occurring in S.110, in the manner it has done in S.117 of the new Act. Therefore, the question as to whether the petitioner company is doing any other business for the purposes of computing the turnover in the aggregate money value for purpose of assessment under R.21(3) of the Kerala Act, will have to be considered in the light of the definition given to the expression "transacts business" in S.117 of the Kerala Act. Again, even if the question has to be considered in that light, as to whether the petitioner company can even then be considered to be transacting business is a totally different matter. Admittedly such a question has not been considered in the previous judgment, namely in O. P. 1342 of 1962. 63. Therefore, ultimately the position is that the approach made by the assessing authority under Ext. D that the petitioner company is bound to produce the income tax assessment order for the year in question cannot be sustained, because that will arise only if the proviso to R.21(2) of the Taxation and Finance rules applies. I have already held that the proviso is invalid and void. Further, the approach made by the assessing authority that because the registered office of the company in India is at Quilon, the turnover of the entire Indian business should be associated with the Quilon office, is too wide and cannot be accepted in its entirety. If the assessing authority is of the view that because the control and administration of the estates or other dealings which took place outside Quilon are being done by the office, at Quilon, the position now stands concluded as against the municipal council by my judgment rendered in O. P. 1342/62, and the respondent must have due regard to the various directions given by me in the said judgment. The contention of the learned counsel for the petitioner that the municipality is not entitled to levy tax at a higher rate than Rs. 250/-, has also been rejected in the common judgment delivered already, and that position is concluded as against the petitioner. 64. The contention of the learned counsel for the petitioner that the municipality is not entitled to levy tax at a higher rate than Rs. 250/-, has also been rejected in the common judgment delivered already, and that position is concluded as against the petitioner. 64. But the other question as to whether the petitioner company is transacting any other business within the municipality, so as to compute the turnover under R.21(3) will have to be considered in the light of the provisions Of S.117 of the new Act. And for that purpose quite naturally materials will have to be collected and the position investigated by the assessing authority. The petitioner company will have also to be given an opportunity of satisfying the assessing authority, that even if the provisions of S.1117 are applicable, the company cannot be considered to be transacting any other business within the area of the said municipality. 65. Therefore to conclude: The order of assessment Ext. D, as well as the consequential demand notice Ext. E, which are under attack in this writ petition, are both set aside and quashed. The assessing authority will have to make a fresh assessment order, having due regard to the directions and observations contained in this judgment. The notice dated 14-3-1962 already sent by the assessing authority to the Petitioner Company, will provisionally stand. The assessing authority will send a supplementary notice to the company, calling upon it to produce any materials that are necessary for having an adjudication on the question as to whether the company has transacted any other business within the municipality during the period in question, in the light of the provisions contained in S.117 of the Kerala Municipalities Act, XIV of 1961. On receipt of such notice, the petitioner company will give full and complete particulars and explanations of the stand that it proposes to adopt in respect of this matter. And after consideration of all these matters, the assessing authority will make an order of assessment, if it becomes necessary, in accordance with the provisions of the new Kerala Act and the relevant rules. 66. The levy of surcharge by the Municipality is also challenged in these proceedings. In view of my decision in O. P. 1342/62, it follows that the levy of surcharge under S.4 of Kerala Act XI of 1957 is absolutely illegal. 66. The levy of surcharge by the Municipality is also challenged in these proceedings. In view of my decision in O. P. 1342/62, it follows that the levy of surcharge under S.4 of Kerala Act XI of 1957 is absolutely illegal. Therefore this aspect will have to be borne in mind by the assessing authority when the matter is to be considered. 67. Subject to these directions and observations, the writ petition is allowed to the extent indicated above, and the orders under attack are set aside. The parties will bear their respective costs. O. P. 2515 of 1962 68. In this writ petition again, Mr. P. K. Kurien, learned counsel for the petitioner challenges the order of assessment made to profession tax under the Kerala Municipalities Act, Act XIV of 1961, by the Commissioner of the Quilon Municipal Council, under Ext. E dated 26th September 1962, for the second half year of 1961-62. 69. No doubt, the basis of the assessment is indicated in Ext. E. But I do not think it necessary to go into all these matters at present, because in my view the grievance of the petitioner that he has not been given a reasonable opportunity to place the necessary materials in support of the return stated to have been sent by him to the assessing authority, has to be accepted in the circumstances of this case. 70. In Ext. D dated 25-2-1962 the petitioner refers to a communication dated 15th September 1962 from the Commissioner of the Municipality concerned. The petitioner also adverts to the fact by his letter dated 20th September 1962, he had requested for a week's time to reply to the Commissioner's letter. But it is seen that the petitioner was informed by the Commissioner that as the Commissioner wishes to finalise the assessment on the 25th instant, time will be granted only upto 24th instant. The petitioner protested against this conduct of the Commissioner in giving only very short time and declining to grant the request of the petitioner. The petitioner also adverts to the fact that in spite of the fact that the Commissioner had taken nearly three months to reply to the petitioner's letter, the Commissioner was not certainly justified in declining to grant the request of the petitioner for sufficient time for placing the necessary materials before the authority. The petitioner also categorically states in Ext. The petitioner also adverts to the fact that in spite of the fact that the Commissioner had taken nearly three months to reply to the petitioner's letter, the Commissioner was not certainly justified in declining to grant the request of the petitioner for sufficient time for placing the necessary materials before the authority. The petitioner also categorically states in Ext. D that in view of the shortness of time, he has been unable to collect any details to be placed before the Commissioner, and therefore, the petitioner requests the Commissioner to give him sufficient time for furnishing any further information or clarification as required by the assessing authority. 71. The petitioner then states in Ext. D that an assessment, if at all, can be made as against the petitioner only under R.21(2) of the Taxation and Finance Rules occurring in Schedule 2 of the Kerala Municipalities Act, Act XIV of 1961. He then refers to various other matters which are not necessary to be adverted to for the present purpose. But it will be seen that on receipt of the letter Ext. D dated 25-9-1962, the Commissioner, on the next day i. e. 26-9-1962, passes the order of assessment Ext. E for the half year in question. I have already indicated that it is not necessary for me to go into the reasons given by the assessing authority in Ext. E. 72. So far as the request of the petitioner for grant of sufficient time and refusal of request by the assessing authority are concerned, these aspects are referred to in paragraph 13 of the counter affidavit filed by the Commissioner. The Commissioner no doubt takes up the position that the petitioner's allegation that sufficient opportunity has not been afforded to him to substantiate his contentions, is not correct. The Commissioner also states that normally a period of 8 days is quite sufficient for giving appropriate answers, under the circumstances, as required by the department. The assessing authority also states that in view of the fact that the petitioner himself has stated that it is not possible to furnish the particulars inasmuch as the nature of the particulars asked for by the Commissioner is not categorically indicated by the Commissioner, that itself clearly shows that no purpose would have been served by giving any further opportunity to the petitioner. 73. 73. In view of the particular circumstances under which the request of the petitioner for time appears to have been made and declined by the Commissioner, Mr. V. K. K. Menon, learned counsel appearing for the respondent Commissioner, found considerable difficulty in supporting the action of the Commissioner. No doubt, ordinarily it is not within the province of this court so long as there has been reasonable time given, to consider whether the time granted by an authority to comply with his requirement is short or long. But certainly this court can consider whether, before passing an order of assessment, and making a party liable under the statute or the relevant rules, reasonable opportunity has been given to the assessee to place his view points or objections to the action proposed to be taken as against him. It is on this limited ground that I am satisfied in the particular circumstances of this case, that the refusal by the Commissioner to grant a slightly longer time, really goes to show that the petitioner cannot be considered to have had a reasonable opportunity to place his objections to the proposals made by the assessing authority. 74. Therefore, on this limited ground, the order of assessment under attack has to be set aside. The various aspects which have to be considered by the Commissioner in the matter of making an assessment, have been laid down by this court in the judgment in O. P. 1342/62, which no doubt, relates to another concern, and also in several other judgments in other writ petitions. In fact the scheme of the Kerala Municipalities Act, XIV of 1961 as well as the rules bearing on the matter, have been discussed and laid down by this court. Having due regard to all those aspects, the assessing authority will give a reasonable opportunity which should be not less than three weeks in this case and then proceed to make a fresh order of assessment according to law and the relevant provisions of the statute and the rules thereunder. 75. Subject to the directions and observations made above, the orders under attack are set aside and the writ petition allowed. The parties will bear their costs.