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1972 DIGILAW 40 (KER)

KSEB v. CANNANORE MUNICIPALITY

1972-02-14

M.U.ISAAC

body1972
Judgment :- 1. The short question that arises for decision is whether the Kerala State Electricity Board is liable to pay profession tax under S.110 of the Kerala Municipalities Act, 1960 (hereinafter referred to as the Act). Sub-section (1) of S.110 alone is relevant; and it reads: "110. Profession tax. (i) If the council by a resolution determines that a profession tax shall be levied every company which after the data specified in the notification published under S.98 transacts business in the municipality for not less than sixty days in the aggregate in any half-year and every person, who, after the said date 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 sixty days to the aggregate, or (ii) without the municipality, but who resides in the municipality for not less than sixty days in the aggregate, or (b) resides in the municipality for not less than sixty days in the aggregate and in respect of any pension or income from investments, shall pay a half-yearly tax assessed in accordance with the rules in Schedule II. The petitioner is admittedly supplying electricity within the limits of the respondent, the Cannanore Municipality. The petitioner has raised two contentions. One is that the petitioner is neither a company nor a person; and the second is that the petitioner's activity does not amount to transacting any business or exercising any profession, art or calling. S.110 would not apply, unless both these conditions are satisfied. 2. The word "company" is defined in S.3 (9) of the Act; and it is conceded that the petitioner is not a company within the said definition. The respondent's case is that the petitioner is a person. According to the petitioner the word "person" in S.110 of the Act means only a natural person, and the petitioner is not, therefore, liable to pay profession tax. The word "person" is not defined in the Kerala Municipalities Act; but it occurs in several sections of the Act. It is clear from the context in which the word is used in those provisions that it includes also a juristic person. For example, reference may be made to S.119 (1) and 126 of the Act. S.119 (1) reads: "119. The word "person" is not defined in the Kerala Municipalities Act; but it occurs in several sections of the Act. It is clear from the context in which the word is used in those provisions that it includes also a juristic person. For example, reference may be made to S.119 (1) and 126 of the Act. S.119 (1) reads: "119. Liability to tax according to period for which the animal or vessel or vehicle has been kept. (1) Every person having possession, custody or control of any taxable animal, vessel or vehicle shall be liable for the full half-yearly tax if the animal, vessel or vehicle has been kept or used within the municipality for an aggregate period of not less than sixty days in the half-year." S. 126 reads : "126. Tax on advertisements. Every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding of structure any advertisement or who displays any advertisement to public view in any manner whatsoever in any place, whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or displayed to public view a tax calculated at such rate and in such manner and subject to such exemptions as the council may. with the approval of the Government, by resolution determine;" (The provisos are omitted) The word person is defined in the Interpretation and General Clauses Act, 1125 as follows: "'Person' shall include any company or association or body of individuals; whether incorporated or not;" The definition is wide enough to include all juristic persons. Ordinarily the word 'person' used in a statute includes a corporation as well as a natural person: vide page 2167 of Stroud's Judicial Dictionary Vol. 3, III Edition, and page 1300 of Black's Law Dictionary, IV Edition. 3. Counsel for the respondent cited two decisions in support of the above position. The first one is a decision of the Bombay High Court in Nagpur Corporation v. N. E. L. & P. Company (AIR. 1958 Bombay 498). In that case, it was contended that the Nagpur Corporation was not a person within the meaning of S.24(1) of the Electricity Act, 1910, and that it was not, therefore, liable to be proceeded against under the above section for non-payment of electricity Charges due to the Electricity Board. The contention was rejected. 1958 Bombay 498). In that case, it was contended that the Nagpur Corporation was not a person within the meaning of S.24(1) of the Electricity Act, 1910, and that it was not, therefore, liable to be proceeded against under the above section for non-payment of electricity Charges due to the Electricity Board. The contention was rejected. The court pointed out that the fact that there are certain special provisions in the Electricity Act regarding local authorities, did not mean that they did not fall within the ordinary meaning of the word 'person'. The next one is the decision of the Allahabad High Court in City Board, Mussoorie v. I.T. Commissioner (AIR. 1953 Allahabad 43). In that case, the City Board, Mussoorie contended that it was not liable to pay excess profits tax on profits made by supply of electric energy and water outside its jurisdiction, as it was not a "person" within the meaning of the charging section in that Act. The contention was rejected holding that, in the absence of anything to the contrary, the word, 'person' would mean a natural person as well as a corporation. The Electricity Board is a statutory body; and it is admittedly a juristic person. The fact that a company has been defined in the Kerala Municipalities Act, and that it has been treated on a special basis for the purpose of profession tax, does not mean that a juristic person who does not fall within the definition "company" would not be a "person" as that term is ordinarily understood in legal parlance. The provision contained in S.133 of the Kerala Municipalities Act is significant in this context. It exempts the Government from profession tax in respect of any commercial, industrial or other like undertaking which are owned or managed by or on behalf of the Government. That shows that, but for the exemption, the Government would be liable to pay profession tax under S.110 of the Act as a person. 4. In support of its contention that the supply of electricity by the petitioner does not amount to transacting any business, counsel for the petitioner invited my attention to S.18 of the Electricity Supply Act, 1948 and submitted that the Electricity Board is only carrying on its statutory duty, and in doing so it has no profit motive, and that its activity does not amount to transacting any business. It is true that the Electricity Board has been enjoined with a statutory duty; and its primary object is to discharge that duty. It cannot do it on charitable basis. It should not do its work on loss. It is expected to carry on the work on profit. Profit making is not the primary object of the Electricity Board; but it is unfortunate if it has no motive to earn profit. Whatever that may be, profit making motive is not a necessary characteristic of a business. In common parlance, the business of the Electricity Board is to supply electric energy; and it is carrying on or transacting that business. Profession tax is charged only on the income or profits; and the contention that a tax cannot be charged on the income or profit arising from that activity since the motive of the activity is not to earn income or prof it seems to me to be hardly statable. For the reasons stated above, this writ petition is dismissed. In the circumstances of the case, I make no order as to costs.