ORDER
M.N. Rao, J.
1. This writ petition was filed by the Andhra Pradesh State Road Transport Corporation (hereinafter referred to as “the corporation) represented by its Managing Director seeking a writ of certiorari to call for the records from the 3rd respondent Assistant Transport Commissioner, Guntur, relating to levy of Rs. 8855-00 towards tax and penalty for the quarter ending with 30th September, 1984 and quash the same.
2. Pursuant to an approved scheme of nationalisation published in G.O. Ms. No. 147 in the year 1982, the corporation was granted a permit to run one Express Service on the route to Vinukonda to Nellore and accordingly permit was granted in respect of the vehicle bearing Registered No. 9770 belonging to the corporation. The dispute raised in this writ petition relates to the period 1-7-1984 to 30-9-1984. The corporation in order to face competition from the private operators, it appears, plied the vehicle during the above quarter as an ordinary Service which had resulted in a show-cause-notice being issued by the Assistant Transport Commissioner, Guntur, the third respondent herein, on 2-8-1984 calling upon the corporation to pay Rs. 8,855-00 towards difference of tax and penalty; the break-up figures are, differential tax of Rs. 5060/- and penalty of Rs. 3,795/ -. The explanation offered by the corporation was rejected and an order was passed on 11-9-1984 by the third respondent Assistant Transport Commissioner taking the view that as the vehicle was operating as Express State Carriage from the date of grant of permit, the rate of tax prescribed for that class of vehicle along with penalty was liable to be paid by the corporation. The appeal preferred against that order to the Deputy Transport Commissioner ended in dismissal on 29-12-1984. Challenging the same, the present writ petition was filed.
3. Sri V. Rajagopal Reddy, the learned Standing Counsel for the corporation contends, on the authority of a decision of a Full Bench of this court reported in Y. Peda Venkaiah v. R.T.O., Nellore , that the sole criteria for levying tax is user of the vehicle and inasmuch as the vehicle in question was used only as an Ordinary Service, levy of tax and penalty treating the same as Express Service is impermissible in law.
4. We are not inclined to agree. The Full Bench decision relied upon deals with a different fact situation. In a case where a person, who obtained permit to ply a vehicle as a contract carriage, was found to have contravened the conditions of the permit by plying the vehicle as a stage carriage, the Full Bench held that he was liable to pay the tax prescribed for stage carriage permits. At page 231, the Full Bench observed;
“In this case when it is found that a vehicle is being used as stage carriage, notice is given to the person concerned as to why it should not be treated as a stage carriage for the purpose of taxation and after hearing the aggrieved party the licensing officer comes to that conclusion that it is used as stage carriage and accordingly levies the tax on that footing. In our view, such a procedure is perfectly justified for levying the tax which the Government is entitled to levy under the charging.”
5. The Andhra Pradesh Motor Vehicles Taxation Act, 1963 (hereinafter referred to as ‘the Act’), by Section 3, confers power on the Government, by notification from time to time, to direct that a tax shall be levied on every motor vehicle used or kept for use, in a public place in the State. Sub-section (2) of Section 3 says that the notification issued under Sub-section (1) shall specify the class of motor vehicles on which, the rates for the periods at which, and the date from which, the tax shall be levied. Section 4 says that the tax levied shall be paid in advance and in the manner specified in Section 11, by the registered owner of the motor vehicle or any other person having possession or control thereof, at his choice, either quarterly, half-yearly or annually on a licence to be taken out by him for that period. Section 6 deals with the procedure for levying penalty for failure to pay tax. It says that if the tax due in respect of any motor vehicle has not been paid as specified in Section 4, the registered owner or the person having the possession or control thereof shall, in addition to payment of the tax due, be liable to a penalty, which may extend to twice the quarterly tax in respect of that vehicle, to be levied by the prescribed officer in the manner prescribed. Rule 5 of the A.P. Motor Vehicles Taxation Rules, 1963, inter alia, lays down the procedure for change of the category of the user of the vehicle.
6. The Corporation, having obtained permit for plying the vehicle as Express Service, cannot unilaterally convert the same into an Ordinary Service without getting the change of user approved by the concerned authorities in the manner specified in Rule 5. In the Full Bench decision relied upon by the learned counsel for the petitioner, there was no change of classification by the permit-holder. That was a case where the permit-holder deliberately committed breach of the conditions by plying a contract carriage as a stage carriage in order to make profit to the detriment of the State. The Full Bench decision, therefore, evolved the test of user for the purpose of determining the tax liable to be paid by the permit holder. That decision cannot apply to a case where the permit-holder considers himself at liberty to change the user without obtaining the permission of the concerned authorities for a particular period in order to avoid competition from other operators. The corporation, having obtained permit to ply the vehicle as an Express Service, is bound to pay the tax prescribed for such class of vehicles. Inasmuch as the same was not paid, the third respondent was justified in law in levying the penalty.
7. The contention that by the same order, the tax and penalty cannot be levied, in our considered opinion, does not merit acceptance- In the aforesaid Full Bench decision, it was observed:
“It was only when the officer held that the carriage was used as a stage carriage and tax was payable on that footing and a demand was made to pay that tax, it can be said that a tax became due. There was no tax due before such determination and demand.”
The Full Bench held that by the same order, tax and penalty cannot be levied, the reasoning being that when a contract carriage permit-holder was found using the vehicle as stage carriage, he should be called upon to pay tax prescribed for stage carriage and on his failure to pay such tax, the provisions of Section 6 of the Act could be invoked for levying penalty.
8. In the present case, the facts are totally different. The Corporation is liable to pay tax in respect of the vehicle in question as Express Service for the period between 1-7-1984 and 30-9-1984. It has failed to pay the tax claiming that its liability was to pay tax only as Ordinary Service. Section 6 of the Act is, therefore, attracted and the third respondent was justified in demanding the differential tax and also levying the penalty.
9. For the foregoing reasons, the writ petition fails and it is accordingly dismissed. No costs.