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Sri Srinivas Transports Vs. the Regional Transport Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Other Taxes
CourtChennai High Court
Decided On
Reported in(1977)1MLJ227
AppellantSri Srinivas Transports
RespondentThe Regional Transport Officer and anr.
Excerpt:
- - we are satisfied that on the facts, the first proviso is applicable and, therefore, the appellant is entitled to the exemption from payment of tax......the case of a transport vehicle if the vehicle is not covered by a valid fitness certificate or a valid permit it may be deemed that the vehicle is not kept for use as a transport vehicle and it is not taxable as such.the second proviso runs as follows:provided further that in the case of motor vehicles not being intended to be used during any period of a quarter, half year or year, as the case may be, the registered owner or person having possession or control of such vehicles shall send intimation to the r.t.o. in whose jurisdiction the motor vehicle is kept, in writing by registered post with acknowledgment due together with reasons for non-use and details of the place where the vehicle is garaged, within 7-days of the expiry of the period for which tax was already paid, that such.....
Judgment:

P.S. Kailasam, C.J.

1. This appeal is filed against the order of dismissal in W.P. No. 947 of 1974 by Ismail, J. In the petition, the appellant prayed for the issue of writ of certiorari calling for the records in Memo. R. No. 19434 of 1974 on the file of the Regional Transport Officer, Madurai and quashing the order dated 26th March, 1974.

2. The fitness certificate of the appellant's vehicle MDM 4467 expired on 27th December, 1973. The appellant sent a stoppage report to the Regional Transport Officer saying that they had stopped running the vehicle. A few days prior to that i.e., on 24th December, 1973, G.O. Ms. No. 3260 was issued, which came into force on 1st January, 1974. According to the appellant, no fitness certificate was obtained and the vehicle was garaged during the months of January, February-and March, 1974. On 25th March, 1974, the appellant wrote to the Regional Transport Officer stating that they desired to resume plying the vehicle from 1st April, 1974 and requesting him to grant them tax exemption for the quarter ending 31st March, 1974. The Regional Transport Officer, Madurai passed the impugned order on 26th March, 1974, finding that the appellant was guilty of non-payment of tax for the quarter ending 31st March, 1974 and calling upon them to pay the quarterly tax of Rs. 4,504.50 P. plus penalty for the quarter ending 31st March, 1974. The validity of this order is now challenged.

3. Section 4 of the Madras Motor Vehicles Taxation Act, 1931 empowers the State Government by notification in the Official Gazette to direct that tax shall be levied on every motor vehicle using any public road in the State of Madras. The words 'using any public road ' in that section were omitted and instead, the words 'kept or used 'were substituted under Act XXXIII of 1973. The result is that after the amendment, even if the vehicle was kept without being used, the State Government would be entitled to levy the tax. After the amending Act XXXIII of 1973 came into force, the Government passed G.O. No. 3260 on 24th December, 1973 providing for certain exemptions in the case of vehicles that were kept as defined in Section 4 of the Motor Vehicles Taxation Act, 1931. Rule 1 provided that for the purpose of Sub-section (1) of Section 4 of the Tamil Nadu Motor Vehicles Taxation Act, 1931 (Tamil Nadu Act III of 1931), a motor vehicle shall be deemed to be kept for use in the State of Tamil Nadu if it fulfils the conditions laid down in (a) and (b) of the rules. We are not concerned with Rule 1 (a) but only with Rule (1) (b). It provides that a motor vehicle shall be deemed to be kept for use in the State of Tamil Nadu in the case of transport vehicles so long as the vehicle is covered by a permit or counter-signature of permit issued by any transport authority in this State or covered by a permit granted in any other State and valid in this State by virtue of rules made under Clause (hh) of Sub-section (2) of Section 68 of the Motor Vehicles Act. According to this rule, therefore, if the transport vehicle is covered by a permit or counter signature of permit issued by any transport authority in this State, it shall be deemed to be kept for use in the State of Tamil Nadu. But there are two provisos which act as exemption to the applicability of this rule. The first proviso runs as follows:

Provided that in the case of a transport vehicle if the vehicle is not covered by a valid fitness certificate or a valid permit it may be deemed that the vehicle is not kept for use as a transport vehicle and it is not taxable as such.

The second proviso runs as follows:

Provided further that in the case of motor vehicles not being intended to be used during any period of a quarter, half year or year, as the case may be, the registered owner or person having possession or control of such vehicles shall send intimation to the R.T.O. in whose jurisdiction the motor vehicle is kept, in writing by registered post with acknowledgment due together with reasons for non-use and details of the place where the vehicle is garaged, within 7-days of the expiry of the period for which tax was already paid, that such vehicle will, not be used after the said date of expiry of the licence for such period and shall at the same time surrender the certificate of registration, permit and tax token, if any in respect of the vehicle or where such documents are seized or retained by any authority a certificate obtained from the concerned authority for having seized or retained documents and thereupon the registered owner or such other persons shall not be deemed to have kept or used the vehicle for such period and no tax shall be payable in respect of such vehicle for Such period.

The mere fact of having sent an Intimation as per provision (ii) above will not entitle a person to claim exemption from liability to pay tax in respect of such vehicle, if on verification it is found that the vehicle has been used during such period or any portion thereof.

4. The effect of the first proviso is that though a vehicle is covered by a permit, it may be deemed that the vehicle is not kept for use as a transport vehicle, if the vehicle is not covered by a valid fitness certificate. Reading this provision by itself it appears that a vehicle may be deemed to be not kept under Section 4(1) of the Act if it is not covered by a valid fitness certificate. But the contention of the learned Counsel for the appellant was rejected by the learned Judge on the ground that the proper, provision that is applicable is the second proviso. It may be seen that the second proviso is applicable to cases where the motor vehicles are not being intended to be used during any period of a quarter. If the intention is not to use the motor vehicle for a quarter, it is required that the owner should send intimation to the Regional Transport Officer in whose jurisdiction the motor vehicle is kept in writing, by registered post with acknowledgment due together with reasons for non-use and details of the place where the vehicle is garaged within 7 days of the expiry of the period for which tax was already paid that such vehicle will not be used after the said date of expiry of the licence for such period. It also requires the operator to surrender the certificate of registration, permit and tax token, if any, in respect of the vehicle. In such a case, the registered owner shall not be deemed to have kept or used the vehicle for such period and no tax shall be payable. The second proviso also provides that the operator will not be entitled to claim exemption from liability to pay tax in respect of such vehicle, if on verification it was found that the vehicle had been used during such period or any portion thereof. The second proviso is applicable to a case where all the necessary documents are available i.e., certificate of registration, permit, tax token etc., but the operator does not intend to use the vehicle during any period of a quarter. When he has the necessary documents but he does riot intend to use the vehicle, he should observe certain pre-cautions viz., he should send intimation to the authority, in writing, by registered post with acknowledgment due, surrender the registration certificate, permit and tax token etc., and intimate the matter where the vehicle will be garaged. As we understand the second proviso, it is meant to apply to cases where the vehicle is ready with the necessary documents in a fit condition to be run on the road, but due to some reasons, the operator intends not to use it during the quarter, whereas the first proviso is applicable to cases where the transport vehicle is not covered by a valid fitness certificate. If there is no valid fitness certificate or a valid permit under proviso (i) the authority may deem that the vehicle is not kept for use as a transport vehicle and not taxable as such. This proviso enables the authority to presume that in the absence of a valid fitness certificate, the vehicle cannot be deemed to have been kept for use and as such not taxable. The option is with the authority not to so presume if it turns out that in spite of the fact that the vehicle was not covered with a fitness certificate the vehicle was put on the road during the quarter or any part of the quarter. We are unable to read that the conditions laid down in proviso (ii) should also be fulfilled in all cases where the transport vehicle is not covered by as valid fitness certificate. The wordings of the two provisos indicate that they are intended to operate under different circumstances, the first proviso to a case where there is no valid fitness certificate or there is no valid permit, i.e., where there is absence of necessary documents for running the vehicle, whereas the second proviso is applicable to cases where the vehicle could be run and the necessary documents are available but the operator has no intention to put the vehicle on the road for the quarter. In this connection, it may also be pointed out that though there are the words 'shall not be deemed to have kept or used', in the second proviso, it is mentioned therein that the authority, if or verification finds that the vehicle had been used during the quarter or any portion thereof, the exemption from payment of tax is not available.

5. The learned Judge dismissed the writ petition on the ground that the first proviso did not apply to the facts of the case. According to the learned Judge, the first proviso merely refers to a fiction or deeming provision and that it is not intended to be obligatory or mandatory as seen from the use of the word 'may'. We are unable to accept this reasoning for the second proviso also provides that the registered owner shall not be deemed to have kept or used the vehicle. The fiction is available under both the provisos. Though the words 'may be deemed' are used in the first proviso while 'shall not be deemed' are used in the second proviso, there cannot be any difference, for in the second proviso, exemption from tax is taken away if on verification it is found that the vehicle has been used during the quarter. This option is made available to the authority by using the word 'may' in the first proviso. We are satisfied that on the facts, the first proviso is applicable and, therefore, the appellant is entitled to the exemption from payment of tax. As the case falls under the first proviso, it was not necessary for them to have taken steps under the second proviso, namely, send intimation in writing by registered post acknowledgment due together with reasons for non-use and details of the place where the vehicle is garaged along with the certificate of registration, permit, tax token etc.

6. In the result, we allow this appeal and hold, applying the first proviso, that the appellant is exempt from the payment of tax for the quarter ending with 31st March, 1974. But it is made clear that if the authority has material for establishing that in spite of the absence of a valid fitness certificate the vehicle was used during the quarter or any portion thereof, he can insist on payment tax. There will be no order as to costs.


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