If a person who is not taxable under the Act is taxed, there has been a substantial disregard of the provisions of the Act, and the bar under Section 228 would not apply.

Madhavan Nair, J.

1. The plaintiff is the appellant, This second appeal arises out of a suit instituted by the plaintiff for the recovery of professional tax of a sum of Rs. 119-12-0 together with interest alleged to have been collected from him wrongfully by the defendant, the Taluk Board of Chicacole represented by its President. The Board assessed the appellant to a professional tax on the ground that he was carrying on money-lending business as his profession. His case is that he is not carrying on the profession of a money-lender and that his accounts, if inspected, would prove his plea; but that the President of the Board refused to look into them. Without examining the merits of his contention, the lower Courts dismissed the suit, as barred by Section 228, Local Boards Act 14 of 1920. Clause (2) of this section expressly bars a suit to recover any sum of money collected under authority of this Act....provided that the provisions of this Act have been in substance and effect complied with,

2. The plaintiffs argument is that an examination of his accounts would show that he is not carrying on the profession of a money-lender, and that if the tax is collected from a person who is not taxable under the Act at all, there has been a substantial disregard of the provisions of this Act and that therefore Clause (2) Section 228 will not be a bar to the institution of a suit. I think this contention is supported by authority. In Municipal Council, Cocnada v. The Standard Life Assurance Company [1901]24Mad.205, a decision under Section 262, District Municipalities Act 4 of 1884, which corresponds to Section 228 of the present Local Boards Act, the Municipal Council of Cocanada levied profession tax on the Standard Life Assurance Company for carrying on business within the Municipality. On the ground that the company was not doing business in Cocanada this Court held that the Municipal Council went beyond their powers in exacting the tax and that Section 262 would not be a bar to the suit to recover the tax from the Municipal Council The learned Judges (Shepherd and Boddam JJ.) formulated the question for decision thus:

The question really is whether, when a company which in respect of its particular business is not taxable under the Act, or does not transact business within the Municipality is nevertheless taxed, it can be said that the provisions of the Act have been in substance and effect complied with.

3. The question whether there has been a substantial compliance with the Act is one of fact which has to be determined with reference to the particular circumstances of the case. Then after referring to some cases for distinguishing them from the case under consideration, the learned Judges stated:

We can see no difference in principle between an exaction of a tax which has not been legally imposed and the exaction of a tax from a person who is not taxable under the Act. In the latter case no less than in the former there has been a substantial disregard of the provisions of the Act.

4. I think these observations may well be applied to the present case. Under Section 93, Local Boards Act, a tax can be levied on a person who carries on money-lending as a profession within the Municipality. If the plaintiffs case is true, his accounts will show that though he may have on a few occasions lent money, he has not been actually exercising the profession of a money-lender and that therefore he is not taxable under the Act. If he is able to substantiate his case then the tax has been collected from him who is not taxable under the Act and according to the decision just quoted there has been a substantial disregard of the provisions of the Act and Section 228, Local Boards Act, would not be a bar to the suit. In Municipal Council of Mangalore v. The Codial Bail Press [1904]27Mad.547, it was held by Sir Subramania Ayyar, Officiating Chief Justice and Bashyam Ayyangar, J., that if a person was assessed under Section 53, Schedule (a), Act