1. The petitioner owned a truck. On 13-8-1975 it intimated respondent 2 who is the Taxing Authority under the Bombay Motor Vehicles Tax Act, 1958 (hereinafter referred to as 'the Act') in form 'NT' prescribed under RS. 5 Bombay Motor Vehicles (Tax) Rules, 1959, )hereinafter referredto as 'the Rules ') that it would not use or kep for use in the State of Maharashtra the said vehicle for the period commencing from 13-8-1975 to 31-8-1976 and that during the abovesaid period the vehicle would be kept at Oka Marg, Jathapeth , Akola. On 16-12-1975 the vehicle was removed from the abovesaid lace to another site which is about a furlong away from the former without obtaining the previouspermission of respondent 2 as required by clause 2 of form 'NT' . On 19-2-1976 the petitioner sought the permission from the Motor Vehicle Inspector al Akola for removing the vehicle from the said site to the garage of a mechanic for repairs. The said Inspector. After visitingthe site on that day and finding the vehicle stationed there. Issued a noticeeto the petitioner asking it to show cause as to why the vehicle had been removed without prior permission and why motor vehicle tax should not be recovered from 13-8-75 on wards with penalty. The petitioner by its letter dated 27-2-1976 explained the circumstances in which the vehiclewas required to be removed from the declared place without the previous permission of the Taxing Authority. The Inspector of Motor Vehicles did not find this explanation satisfactory and under his letter dated 8-3-1976 he called upon the petitioner to remit the dues as indicated in the show cause noticee/ the petitioner thereupon made a representationto respondent 2 on 2-4-1976 once again explainingthe circumstances in which the vehicle was removed without prior permission and requesting for cancellation of the tax demanded by the Inspector. Respondent 2 bby his letter dated 2-6-1976 rejected this representation observing as follows:
'With reference to the above I have to inform you that since you have removed the abovesaid vehicle from non-use without prior permission from this authority as reported by I. M. V. Akola , your request for to withdraw the DNS of calling BMV tax from 1-9-1975 as the non-use which was submittedby you is nullified which please note.'
The petitioner then moved respondent 1 in appeal under Section 14 of the Act. By his order passed on 22-4-1977 respondent1 allowed the appeal partly directing respondent 2 to recover only the tax. Which had been already paid under protest. But waiving the penalty if full. It is against this order that the present writ petition has been filed.
2. Mr. W. G. Deo the learned counsel for the petitioner submitted that the tax for the period of non-use of the vehicle as intimated by the non-use of the vehicle as intimated by the petitioner to respondent 2 could bot be levied by the latter simply because the petitioner hadremoved the vehicle from the place where it was declared in from NT to be stationed, to another place, a furlong away, without the previous permission of respondent
3. According to Mr. Deo, removal of the vehicle without such permission would at the most amount to breach of the under taking , which had been given by the petitioner under the declaration submitted by him in form 'NT' but would bot entitle the Taxing Authority to levy the tax without its holding that the vehicle had been actually used or kept for use during the said period. Fro this purposeMr. Deo relied on the proviso to sub-rule (2) of Rule 5 of the Rules. Accordingto Mr. Deo, once the non-user had ben certified by the Taxing Authority as required by sub-rule (2) of Rule 5, it would not be open to it to levy tax unless and until it found that the vehicle was actually used or kept for use in the State during such period and much less could the tax be levied simply because the vehicle had been removed from one place to another without the previous permission of the Taxing Authority. Mr. Deo submited that there is no provision anywhere either in the Act or the Rules which makes the tax leviable on a vehicle in respect of which intimation of non-use has been given as required by sub-section (3) of Section 3 simply because during such declared period the vehicle is removed from one place to another without the permissionof the Taxing Authority.
4. On the other hand Mr. V, V, Naik the learned Assistant Government Pleader submitted that the undertaking contained in from 'NT' to the effect that the owner would not remove the vehicle without the permission of the Taxing Authorityis a condition for exempting him from payment of tax during the period of non-use and if he commits a breach of this condition , he renders himself disentitled to the exemption and the certificate of non-use issued by the Taxing Authority under Sub-rule (2) of R. 5 stands nullified and revoked automatically. He further submitted that this undertaking is takenfrom the owner in order to facilitate the Taxing Authority to check non-use of the vehicle during the declared period and if the vehicle is removed with his permission he would know where it is so as to check it when ever he wants it.
5. Sub-section (1) of Section 3 is the charging section under 3hich taxon all motor vehicles used or keptfor use in the State is levied. A plain reading of this sun-section would show that the tax can be levied only on vehicles which are used or kept for use in the State. It, therefore. Follows that such a tax cannot be levied on vehicles which are not used or which are not kept for use in the State. Whilelevying the tax question may arise whether the particular vehicle is used or kept for use. In order to obviatethis difficulty sub-section (3) of Sec. 3 introduces a deeming fiction. It says that for the purpose of the Act a registered owner or any person having possessionor control of a motor vehicle shall be deemed to have used or keptsuch vehicle for use in the State unless he intimatesin writing in advance to the Taxing Authority in the prescribed manner that the vehicle will not be used or kept for use in the State unless he intimates in writing in advance to the Taxing Authority in the prescribed manner that the vehicle for use in the State unless he intimates in writingin advance to the Taxing Authority nin the prescribed manner that the vehicle will not be used or kept for use in the State during the periodspecified in the intimation and the Taxing Authority certifies in the prescribed manner that such vehicle was not used or kept for use in the State during the period specified in the certificate. It would, therefdore. Appear that in the absence of intimation on the part of the owner regardingthe non-use and the certificate to be given by the Taxing Authority in that behalf, the presumption would be that the vehicle is used or kept for use in the State. Rule 5 provides for a certificate for non-user . Sub-rules (1) and (2) of Rule 5, as they stood at the time when the impugned orders were passed are in the following terms.
'5. Certificate for non-user.- (1) A registered owner of or any person who has possession or control of, a motor vehicle, not intending to use or kept for use such vehicle in the state or intending to use it exclusivelyin a place which is not a public place and desiring to be exempted from payment of tax on that account (and not on account of any of the reasons falling under the provisio to sun-section (2) of Section 3 of the Act) Shall before the commencement of the period of non-use and before the expiry of the current period for which the tax on such vehcle hasbeen paid or a declaration of non-use as herein provided has been made make a declaration in form 'NT' to the appropriate Taxing Authority along with the certificate of taxation. The declaration shall be presented either in person to the appropriate Taxation Authority (and the Taxation Authority shall duly acknowledge its receipt) or sent by registered post acknowledgment due.
(2) If the Taxation Authority is satisfied that the motor vehicle in respect of whichdeclaration in Form 'NT' has been made has not been used or kept for use for the whole or part of the period mentioned in the declaration and for which tax has not been paid, it shall certify in the certificateof taxation that the motor vehicle has not been used or kept for use for the whole or part of such period as the case may be:
Provided that, nothing contained in this sub-rule shall affect the right of the Taxation Authority to recover the tax for the periodof non-use so certified, if at any time it is found that the vehicle was actually used or kept for use in the State during such period .'
'2. I also declare that I shall not remove the sid vehicle from the above mentionedplace withoutthe previous permissionof the Taxing Authority.'
A close reading of sun-rules (1) and (2) of Rule 5 would show that they do not speak of removal of the vehicle from the declared place to another place without the previous permissionof the Taxing Authorityor the consequence there of. Even form 'NT' does not state that such removal would entail levy of full tax on the vehicle. Reading sub-rule (2) with the proviso thereto it would appear that the Taxing Authority could recoverthe tax due for the period of non-use, if it foundthat the vehicle was actually used or kept for use in the State. In other words once the Taxing Authority certifies the non-use in the State. In other words once the Taxing Authority certifies the non-use as required by sub-rule (2) of Rule5, it can levy tax if the vehicle is found to be actuallyused or kept for use daringthe declared period. It seems that the tax would not become leviable only because the owner incontravention of the declaration contained in the form 'NT' has removed the vehicle from one place to another without the previous permission of the Taxing Authority. There is nothing either in sub-rule (1) or sub -rule (2) of Rule 5 to uphold the contention urged by Mr. Naik that the certificate for non-use issued by stands nullifiedand revoked simply because the owner removes the vehicle without its previous permission. As a mater of fact sub-rule (2) of rule 5 speaks of issuing the certificates and does not speak of the contingencies in which it can be deemed to have been nullified or revoked. On he other hand the proviso enables the Taxing Authority to re cover the tax if the vehicle is found actually to have been used or kept for use. Sub-rule (2) of Rule 5 if correctly interpreted would mean that the Taxing Authority could recoverthe tax even for the period of non-use so certified by it in the event of its finding that the vehicle was actually used or kept ofr use during the abovesaid period. Looking at the present case from this angle. Therefore, it seems to us that the ,mere fact that the owner removes the vehicle from one place to another place without its previous permissionwould not empower the Taxingauthority to recover the tax for the whole period of non-use unless it finds that the vehicle had been 'actually' used or kept for use. In this viewof the matte, therefore. It is not possible to justify the orders which have been passed by respondents 1 and 2 levying the tax on the petitionerfor the period of non-use only on the ground that the petitioner had removed the vehicle from its original place to another place without its previous permission, when respondent 2 has not recordeda finding that the vehiclewas used or kept for use at any time during the period intimated by the petitioner for non-use.
6. In the result, the wirt petitionis allowed and the rule is made absolutein terms of prayer clauses (I) and (ii) . In the circumstances of the case there shall be no order as to costs.
7. Petition allowed.