The learned counsel for the respondent finally contended that S. 376 of the Municipalities Act bars the suit questioning the levy and assessment of municipal tax; and as such the plea of the defendants that the assessment cannot be enforced is not maintainable. {Para 18}
19. S. 376 of the Municipalities Act, to the extent relevant is as follows:
(1) No assessment or demand made, and no charge imposed under the authority of this Act shall be questioned or affected by reason of any clerical error or by reason of any mistake (a) in respect of the name, residence, place of business or occupation of any person or (b) in the description of any property or thing or (c) in respect of the amount assessed, demanded or charged, provided that the provisions of this Act have been, in substance and effect complied with and no proceedings under this Act shall, merely for defect in form be quashed, or set aside by any Court:
xx xx xx xx Section 376 bars the filling of the suit in respect of the procedure adopted and also any defect in form and mistakes with respect to the amount assessed, demanded or charged; but however, saves the disputes regarding the non-compliance or deviation of the provisions of the Act. In a situation where there is an infraction of the provisions of the Act, it cannot be said that the suit is not maintainable. Further in a suit is not maintainable. Further in a suit for recovery of tax, it is open to the defendant to plead that both the levy and collection of tax are illegal. The plea of the defendants in this case is that the levy of assessment of tax deviates from the provisions of S. 87 of the Act. The essence of the plea is that the assessment is not in conformity with S. 87 (2) (b) which says that the rent received is the basis for assessing the rental value the estimate of value or the assessment on the basis of rent by the leesee or the tenant is far remote from the intention of S. 87 (2) (b) and as such the plea in defence is maintainable.
20. The learned counsel for the appellant relied upon the decision in Vizianagaram Municipality v. Bhaskara rao, where a Division Bench of this Court consisting of Satyanarayana Raju J. And Kumarayya. J. Held that the ouster of civil court's Jurisdiction under S. 364 of the Madras District Municipalities Act is only partial and is confined to the language and intendment of the provisions. The impeachment of the assessment or demand is not permissible on the ground that there is a clerical error or mistake in respect of the amount assessed. But in a situation where the provisions of the Act have not in substance and effect, complied with by the authority while making the assessment, the jurisdiction of the civil Court is unaffected.
22. It is also contended that the remedy is open to the defendants by way of an appeal under R. 22 of Sch. I of the Municipalities Act; and as such this plea is not maintainable. It must be borne in mind that the defendants have not initiated action and they are defending themselves against the onslaught of the illegal and invlaid assessment and collection pursuant to the same. They are not questioning the quantum of assessment as such; but the basis of assessment. In the circumstance,s the suit is not barred; much less the plea in defence against, the suit filed by the Municipality.
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