Judgment:
Balakrishnan Nair, J.
W.P.(C) No. 5165/2009:
1. The writ petitioners are Advocates practising in the Courts at Chittur - Thathamangalam Municipality in Palakkad district. This Writ Petition is filed by them, challenging Rule 3(2) of the Kerala Municipality (Profession Tax) Rules, 2005 (hereinafter referred to as 'the Rules'). The relevant portion of the said Rule reads as follows:
3. Levy of Profession Tax:
(1)
(2) For the purpose of levying profession tax from those engaged in self employment companies and those transacting business and not coming within the purview of Sub-rule (1), as to which categories they shall be classified and how much half-yearly tax to be levied on each category shall be as described below, namely:
Half-yearly tax Advocates, Private Doctors, Vaidyans, Rupees 1,250 para-medical experts and others engaged in similar professions.
xxx xxx xxx xxx
Explanation:- If any person or institution belongs to more than one categories of the above schedule at the same time, such person or institution shall be deemed to belong to the category to which the highest rate of tax applicable only and the tax applicable to that category shall be levied. In sub- rule (2) to (11) of Rule 3 the maximum rates of half- yearly tax to be remitted are fixed. The minimum rates of tax for these categories shall be as described in the schedule under Sub-rule (1) of Rule 3. If the tax payers satisfy the Local Self Government Institution concerned recordically about their taxable income, the tax shall be assessed accordingly as described under the schedule to Rule 3(1).
The grievance of the petitioners is that without any reference to their annual income, profession tax has been fixed at the rate of Rs. 1,250/- per half-year. They submit, in the case of salaried persons, Sub-rule (1) of Rule 3 of the Rules provides a schedule. As per that schedule, tax is levied with reference to the income from salary. A similar method should have been followed in the case of professionals like the Advocates, it is submitted.
2. We heard the learned Counsel who appeared for the Municipality. We think, the grievance of the petitioners is imaginery and non-existing, in view of the explanation to Rule 3(2) of the Rules. The said explanation categorically says that the table given in Sub-rule (2) fixing the profession tax relates to the maximum tax that could be levied. If the income is low, justifying a lower rate of profession tax, the assessees can satisfy the local authority regarding their real income and seek reduction of profession tax correspondingly. In view of the above position, the challenge made by the petitioners against Sub-rule (2) of Rule 3 of the Rules fails. Accordingly, the Writ Petition is dismissed.
3. W.P.(C) No. 26269/2006: In this Writ Petition also, the Kerala Municipality (Profession Tax) Rules, 2005 is under challenge. Money lending will definitely come under the term 'profession', as understood in legal parlance relating to profession tax by local bodies. A rule framed under a statute can be challenged only on limited grounds. They have been succinctly stated by a Division Bench of this Court in Pankajaksy v. George Mathew 1987(2) KLT 723. The relevant portion of the said judgment reads as follows:
12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is 'unreasonable' to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.
We find that no such ground has been raised or argued before us. The rule has been framed, invoking the power of the Government under Section 215 read with Section 565 of the Kerala Municipality Act. The rate of tax provided in Rule 3(2) of the Rules is the maximum permissible, which can be levied by way of profession tax. If anyone is having a lower income, justifying levy of lesser amount of tax, he can move the local authority and get reduction of the tax, which may be appropriate to his income. That is taken care of by the explanation given under Rule 3(2) of the Rules. If the tax levied is not in accordance with the rule or the provisions of Section 245 of the Kerala Municipality Act, the members of the petitioner have statutory remedies under Section 509 of the Kerala Municipality Act. In view of the above position, the Writ Petition fails and it is dismissed.