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Matoria Bus Service Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 526, 1545, 1735, 1736, 1747 and 1748/1973
Judge
Reported in1978WLN(UC)431
AppellantMatoria Bus Service
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Excerpt:
.....passengers & goods taxation act, 1959 - appeal--no appeal filed by department against final assessment order--held, order of appellate authority enhancing penalty was incompetent and against rules of natural justice and it cannot be sustained.;no appeals were filed by the department against the orders of the final assessment passed by the assessing authority and in the absence of such appeals it was not competent for the appellate authority to interfere with the final assessment orders on the ground that is the said orders the penalty which was imposed was lesser than that imposed under the provisional assessment orders.;writ allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986,..........to submit the returns. the aforesaid orders of provisional assessment were followed by orders for final assessment dated 30th december, 1970 passed by the assessing authority under rule 19 of the rules. under the said final assessment orders, the penalty imposed en the petitioner was less than the amount of penalty imposed under the provisional assessment orders. the penalties imposed under the provisional assessment order and the final assessment order in each of these cases were as under:writ petition no. provisional assessment order final assmt. orders.b.c.w. no. 526/73 rs. 1510/- rs. 647/--do- 1545/73 rs. 1668.20 rs. 519/--do- 1735/73 rs. 2564.00 rs. 521/--do- 1736/73 rs. 2606.00 rs. 532/--do- 1747/73 rs. 1527/- rs. 582/--do- 1748/73 rs. 1240/- rs. 501/-3. aggrieved by the final.....
Judgment:

S.C. Agrawal, J.

1. M/s Matoria Bus Service (Private) Registered, the petitioner in all these writ petitions, is a partnership firm carrying on business of motor transport and it holds non-temporary stage carriage permits in respect of certain routes and for that purpose it owns a number of buses. The Rajasthan Passengers and Goods Taxation Act, 1959, thereinafter referred to as the Act. provides for levying of tax on passengers and goods carried by road in motor vehicles Section 6 of the Act provides for submission of returns by the owner of a motor vehicle at such intervals and to such authority as may be prescribed and Sub-section (2) of Section 6 of the Act provides for imposition of penalty in cases where an owner fails, without reasonable cause, to submit any return or pay the tax due according to such return within 15 days of the due date. The Rajasthan Passengers & Goods Taxation Rules, 1959, (hereinafter referred to as the Rules) which have been made in exercise of the powers conferred by Section 21 of the Act, make provision for the payment of tax by the owner of a motor vehicle. Rule 10A of the Rules, empowers the Assessing Authority to make a provisional assessment in cases where the owner fails to submit the return. Rule 19 of the Rules provides for the passing of an order of assessment in respect of the tax payable by an owner for the entire year. Section 14 of the Act provides for a right of appeal against an order passed by the Assessing Authority and Section 15 confers a revisional power on the Transport Commissioner, of his own motion or on an application made to him in the prescribed manner, to call for the record of any proceedings which are pending before him or have been disposed of by any authority subordinate to him made the Act for the purpose of satisfying himself as to the legality or propriety of such proceedings or of any order made therein and to pass such order in relation there to as he may think fit.

2. In all these writ petitions, the Assessing Authority, viz, the Assistant Commercial Taxes Officer, Hanumangarh, by separate orders dated 11th March, 1970 provisionally assessed the petitioner in respect of tax payable by it in respect of each vehicle owned by ii. In the said orders of provisional assessment, the Assessing Authority also imposed penalty on the petitioner under Sub-section (2) of Section 6 of the Act for failure to submit the returns. The aforesaid orders of provisional assessment were followed by orders for final assessment dated 30th December, 1970 passed by the Assessing Authority Under Rule 19 of the Rules. Under the said final assessment orders, the penalty imposed en the petitioner was less than the amount of penalty imposed under the provisional assessment orders. The penalties imposed under the provisional assessment order and the final assessment order in each of these cases were as under:

Writ petition No. Provisional Assessment order Final Assmt. orderS.B.C.W. No. 526/73 Rs. 1510/- Rs. 647/--do- 1545/73 Rs. 1668.20 Rs. 519/--do- 1735/73 Rs. 2564.00 Rs. 521/--do- 1736/73 Rs. 2606.00 Rs. 532/--do- 1747/73 Rs. 1527/- Rs. 582/--do- 1748/73 Rs. 1240/- Rs. 501/-

3. Aggrieved by the final assessment orders, the petitioner filed appeals before the Appellate Authority No appeal was, however, filed on behalf of the department against the final assessment orders in so far as the amount of penalty was reduced in the final assessment order. All these appeals filed by the petitioners were disposed of by the Deputy Commissioner Commercial Taxes (Appeals) Bikaner, by separate orders 5-2-1973. In the said orders it is recorded that the petitioner was absent inspite of the service of notice.But the Appellate. Authority, instead of dismissing tire appeals in default, proceeded to heat the Department Representative and set aside the order of final assessment on the view that the Assessing Authority was not competent to vacate, amend, revise, reduce or enhance the penalty order passed by it and that the Assessing Authority had committed an illegality in passing the final assessment order in vacating the penalty order passed by it in the provisional assessment order. The Appellate Authority set aside the final assessment orders passed by the Assessing Authority and remanded the cases to the Assessing Authority to proceed afresh in the light of directions given in the order of the Appellate Authority. Thereafter, the Assessing Authority passed fresh assessment orders wherein it enhanced the penalties and imposed the same penalties which were imposed by it in the provisional assessment orders. Aggrieved by the aforesaid orders passed by the Assessing Authority, the petitioners have filed these writ petitions. In the writ petitions, the petitioner has prayed for the issue of a writ of certiorari to quash order of the Appellate Authority dated 5th February, 1973 as well as order of the Assessing Authority dated 19th March, if 973, passed by the Assessing Authority after the matter had been remanded to it by the Appellate Authority.

4. Although in the writ petitions, the petitioner has raised a number of questions but at the time of hearing the learned Counsel for the petitioner confined his attack to the impugned orders only on the ground that in the absence of and appeal by the Department seeking relief against the amount of penalty imposed by the Assessing Authority in the final assessment order passed by it, it was not competent for the Appellate Authority to interfere with the order of the final assessment passed by the Assessing Authority on the ground that the penalty imposed by the Assessing Authority in the provisional assessment order ought to have been imposed and the same could not be reduced while passing the final assessment order.

5. The learned Dy. Government Advocate has submitted that the petitioner cannot challenge the correctness of the order of the Appellate Authority dated 5th February, 1973 is the present petitions and that the petitioner ought to have filed a revision petition against the said order under Section 15 of the Act and that it was open to the petitioner to file an appeal or revision petition against the order of assessment passed by the Assessing Authority after the matter has been remanded to it by the Appellate Authority.

6. The aforesaid Contetntion urged toy the learned Dy. Government Advocate cannot be accepted for the reason that the orders of the Appellate Authority dated 5th February, 1973 are completely within the jurisdiction having been passed in violation of the principles of natural justice and on the basis of the said orders the fundamental rights of the petitioner guaranteed under Articles 19(1)(f) & 31 are being threatened in as much as enhanced penalty is sought to be recovered from them. Moreover, the order of the Appellate Authority dated 5th February, 1973, was an order on remand and the petitioner was not obliged to file a revision petition against the said order under Section 15 of the Act, specially when the remedy of revision provided under Section 15 of the Act is in the nature of a discretionary remedy. The petitioner in the writ petitions has challenged the correctness of the said order of the Appellate Authority and in my view the provisions of Section 15 of the Act cannot be invoked as a bar to the maintainability of the writ petition filed by the petitioner for the issue of a writ of certiorari to quash the orders of the Appellate Authority in the present cases.

7. In so far as the validity of the orders of the Appellate Authority dated 5th February, 1973 is concerned there is no dispute that no appeals were filed by the department against the orders of the final assessment passed by the Assessing Authority and in the absence of such appeals it was not competent for the Appellate Authority to interfere with the final assessment orders on the ground that in the said orders the penalty which was imposed was leaser than that imposed under the provisional assessment orders and it was not competent for the Assessment Authority to reduce the amount of penalty in the final assessment order from the amount of penalty imposed by it in the provisional assessment order. The only appeal that was filed against the final assessment order was the one that was filed by the petitioner. In view of the fact that the petitioner had failed to appear before the Appellate Authority on the date fixed for the hearing of the said appeals the only option open to the Appellate Authority was either to dismiss the said appeals or to adjourn the same for some other date to enable the petitioner to appear before it. What the Appellate Authority has done is that it proceeded to hear the said appeals and to dispose them of as if the same had been filed by the department. This it could not do. The orders of the Appellate Authority which were passed in complete disregard of the principles of natural justice cannot, therefore, be sustained and have to be quashed.

8. The final assessment orders dated 9th March, 1973, passed by the Assessing Authority in pursunce of the orders of remand passed by the Appellate Authority having being passed in accordance with the directions contained in the order of the Appellate Authority dated 5th February, 1973 cannot also be sustained and have to be quashed.

9. The result is that the writ petitions are allowed and the orders of the Deputy Commissioner, Commercial Taxes (Appeals). Bikaner, Camp. Hanumangarh dated 5th February, 1973 and the orders of the Asstt. Commercial Taxes Officer, Hanumangarh dated 9th March 1973 are quashed. The matters will go back to the Dy. Commissioner, Commercial Taxes (Appeals) Bikaner for disposal of the appeals of the petitioners according to law. There will be no order as to costs.


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