High Court Kerala High Court

The Regional Transport Officer/ vs K.S.Brahmadas on 14 June, 2007

Kerala High Court
The Regional Transport Officer/ vs K.S.Brahmadas on 14 June, 2007
       

  

  

 
 
  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.

                  ...................................................................................

                                    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

W.A. No. 1059 OF 2006

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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

W.A. No. 1059 OF 2006

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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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