IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1059 of 2006()
1. THE REGIONAL TRANSPORT OFFICER/
... Petitioner
2. THE DEPUTY TRANSPORT COMMISSIONER,
3. THE TRANSPORT COMMISSIONER,
4. THE STATE OF KERALA, REP. BY ITS
Vs
1. K.S.BRAHMADAS,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.C.C.THOMAS
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :14/06/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
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W.A. No. 1059 OF 2006
...................................................................................
Dated this the 14th June, 2007
J U D G M E N T
H.L. Dattu, C.J.:
Challenging the correctness or otherwise of the judgment
of the learned single Judge in W.P.(C) No. 34608 of 2005 dated 7th
February, 2006, the Revenue is before us in this Appeal. By the
impugned judgment, the learned single Judge has directed the first
respondent/first appellant herein to refund the tax paid by the
petitioner/respondent herein for the quarter ending on 31.03.2002.
2. Shri V.V. Asokan, learned Special Government
Pleader for Taxes would submit that for claiming refund or exemption
from payment of tax, the registered owner of the vehicle ought to have
filed Form G prescribed under the Kerala Motor Vehicles Taxation Act
(‘Act’ for short) and since that has not been done, the learned single
Judge ought not to have directed the authorities to refund the tax paid.
3. The admitted facts are:
The respondent herein was the registered owner of the
vehicle bearing registration NO. KRU-1810. The said vehicle was
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covered by a regular permit on the route Andamukku-Kottarakkara .
He had paid tax for the quarter ending on 31.03.2002 only on
13.03.2002. Since, according to him, he had not operated the vehicle
during the quarter ending on 31.03.2002, he had filed an application
before the authorities, claiming refund of tax paid by him under the
provisions of the Kerala Motor Vehicles Taxation Act. The said
application was rejected by the authorities by passing Ext.P4 order
dated 13.09.2004 . That order had been questioned by the registered
owner before this court in W.P.(C) 32302 of 2004. As we have already
stated that the learned single Judge has allowed the Writ Petition and
has directed the authorities to refund the tax paid by the registered owner
for the quarter ending on 31.03.2002. The correctness or otherwise of
the said order is the subject matter of this Writ Appeal.
4. For the purpose of answering the issues raised in this
Writ Appeal, certain provisions of the Act requires to be noted. Section
2 of the Act speaks of ‘registered owner’, ‘tax’ etc . Section 2(e) of the
Act speaks of the registered owner, which only means, the person in
whose name a motor vehicle is registered or deemed to be registered
under the Motor Vehicles Act. Section 2(h) defines ‘tax’ to mean tax
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leviable under the Act. Section 3 of the Act is charging provision .
Under the said section, tax is leviable on every motor vehicle used or
kept for use in the State at the rates specified for such vehicle in the
Schedule. Section 4 of the Act speaks of payment of tax and issue of
licence. The said section is not relevant for the purpose of the issue
raised in this Writ Appeal. Then we go to section 5 of the Act, which
speaks of exemption from tax. The said section requires to be noticed
and therefore, it is extracted:
“5. Exemption from tax: (1) In the case of a motor
vehicle which is not intended to be used or kept for use
during the first month or the first and second months of a
quarter, or the whole of a quarter or year, as the case may
be, the registered owner or the person having possession or
control of such vehicle shall give previous intimation in
writing to the Regional Transport Officer from whom the
endorsement of tax has been obtained, that such vehicle
would not be used for such period and thereupon, the
registered owner or such other person shall not be deemed
to have used or kept for use the vehicle for such period, and
no tax shall be payable in respect of such vehicle for such
period.
(2) Nothing in sub-section (1) shall exempt a person from
liability to pay tax in respect of a motor vehicle, if, on
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verification, it is found that the motor vehicle has been used
during such period or any portion thereof.
(3) Notwithstanding anything contained in sub-section
(1), in an appeal under section 23 or a revision under
section 24, the burden of proving that a motor vehicle has
not been used during any period shall be on the registered
owner or the person having possession or control of the
motor vehicle, as the case may be.”
5. Under the aforesaid section, if the registered owner of
the vehicle is of the opinion that he has no intention to use or kept for
use the vehicle during the first month or the first and second months
of a quarter, or the whole of a quarter or year, as the case may be,
previous intimation shall be given in writing to the Regional Transport
Officer from whom the endorsement of tax has been obtained that such
vehicle would not be used for such period and when such an intimation
is given, the registered owner or such other person shall not be deemed
to have used or kept for use the vehicle for such period . If all these
conditions are applied , the registered owner is exempted from payment
of tax in respect of such vehicle for such period. Section 5 of the Act
also prescribes the procedure that requires to be followed by the
registered owner of the vehicle for claiming exemption from payment of
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tax under the Act.
6. Then we go to section 6 of the Act, which speaks of
refund of tax paid under the Act. The said section is as under:
“(1)Where the tax for any motor vehicle has been paid for
any quarter or year and the vehicle has not been used or
kept for use during the whole of that quarter or year or a
continuous part thereof not being less than one month, a
refund of the tax at such rates as may, from time to time, be
notified by the Government , shall be payable subject to
such conditions as may be specified in such notification.
(2) Notwithstanding anything contained in this Act, a
registered owner who has paid tax for a year or more shall
be entitled to refund of tax at such rates as may be
prescribed on cancellation of the registration of the vehicle
or removal of the vehicle to any place outside the State on
account of transfer of ownership or change of address.
7. An analysis of the aforesaid section would indicate that
if, for any reason, the tax for any motor vehicle has been paid for any
quarter or year and if the vehicle has not been used or kept for use
during the whole of that quarter or year or a continuous part thereof not
being less than one month, the registered owner of the vehicle may
claim for refund of tax at such rates as may, from time to time, be
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notified by the State Government . Sub-section (2) of Section 6 of the
Act states that the registered owner who has paid tax for a year or more
shall be entitled to refund of tax at such rates as may be prescribed on
cancellation of the registration of the vehicle or removal of the vehicle
to any place outside the State on account of transfer of ownership or
change of address.
8. In the instant case, it is not the case of the registered
owner of the vehicle that he is claiming exemption from payment of tax.
In fact, for the quarter ending on 31.03.2002, he had paid tax on
13.03.2002. According to him, he had not used the vehicle for the said
quarter. Therefore, he has claimed refund of tax by approaching the
authorities under the Act. Being of the view the owner had not claimed
exemption by filing Form G which is meant for claiming exemption
from payment of tax, the authorities have rejected the claim of the
petitioner, which, in our opinion, is impermissible under the law.
Section 5, as we have already noticed, speaks of claim for exemption
from payment of tax and Section 6 of the Act provides for refund of
tax. If a person or a registered owner of a vehicle claims refund of tax,
he ought to have requested the authorities under the said provisions of
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Section 6 of the Act and the procedure prescribed thereunder. In the
instant case, as we have already noticed, the respondents/ appellants
herein had rejected the claim of the petitioner/ respondent herein solely
on the ground that the petitioner had not filed Form G, which is meant
for claiming exemption from payment of tax . This action of the
authorities is in violation of the provisions of the Act. The authorities
were expected to keep in view the distinction of the two claims, viz.,
claim for exemption from payment of tax and claim for refund of tax.
Exemption from payment of tax is not the same thing as that of claim
for refund of tax. In that view of the matter, the procedure followed by
the respondents/appellants herein is improper, illegal and irregular and
therefore, appropriate orders are require to be made. Accordingly, the
following:
O R D E R
i) Writ Appeal is disposed of. The order impugned in this Writ
Appeal is set aside.
ii) The matter is remitted back to the appellants to re-consider
the application filed by the registered owner of the vehicle by
applying the provisions of Section 6 of the Act and the rules
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framed thereunder and also keeping in view the several
notifications issued by the State Government from time to
time. This exercise, the appellants, shall do within six
months from the date of receipt of a copy of this judgment.
While doing so, the appellants shall not be influenced by any
of the observations made by the learned single Judge.
I.A. 305 of 2007 is also disposed of.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
lk/DK
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