High Court of KeralaSingle Judge2014-06-09Writ Petition allowed; refund of 1/3rd of the t...

A. Sunil v. The Regional Transport Officer, Kasaragod; The Deputy Transport Commissioner, North Zone Kozhikode; The Transport Commissioner, Thiruvananthapuram

Case / Petition Number:WP(C).No. 13298 of 2013 (J)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-06-09
Court Decision / Holding: Writ Petition allowed. No costs. Ext.P3 and Ext.P5 are set aside. The matter is remanded to the authority to conduct an enquiry into the genuineness of Exts. P1 and P2 within two months of certification, and if found genuine, the authority under the taxation statute shall pass orders within two months thereafter, granting the refund (1/3rd of the tax remitted for July 2009).
Final Disposition: Writ Petition allowed; refund of 1/3rd of the tax remitted for July 2009; remand for verification of Exts P1 and P2; two months for enquiry and two months thereafter for refund.

Parties to the Case

Appellants / Petitioners

A. Sunil

Respondents

The Regional Transport Officer, Kasaragod
The Deputy Transport Commissioner, North Zone, Kozhikode
The Transport Commissioner, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sajeev Kumar K. Gopal
• R. Harishankar

Counsels for Respondents

• Liju Stephen

Case Synopsis & Summary

This writ petition challenges the refusal to refund motor vehicle tax paid for July 2009 in respect of two Karnataka-registered stage carriages that were garaged in Mangalore during the month. The petitioner had been paying quarterly tax and argues that the vehicles were not operated on Kerala roads in July 2009, as evidenced by endorsements from the Karnataka Transport Department (Exs. P1 and P2). The initial rejection (Ext. P3) treated the matter under Section 5 read with Rule 10 of the Kerala Motor Vehicles Taxation Act, 1976, denying refund for lack of prior intimation; Ext. P5 confirmed the denial on revision. The petitioner contends that refunds are governed by Section 6 of the Act and a government notification, SR.O 874/75, clarifies entitlement in cases of non-use, so the application should be considered on that basis. The court notes a binding line of authority in Damodaran v. RTO Malappuram (2000) 2 KLT 578, which held that requiring prior intimation is impracticable. The court agrees that Section 6 applies to refunds for non-use and that the prior-intimation requirement cannot bar a genuine refund. Accordingly, the petition is allowed, Exts. P3 and P5 are set aside, and the matter is remanded for verification of Exts. P1 and P2 with a two-month deadline for enquiry and a further two months to grant the refund (1/3rd of July 2009 tax).

Provisions of Law Cited

Section 5, Kerala Motor Vehicles Taxation Act, 1976Rule 10, Kerala Motor Vehicles Taxation Rules (as referenced with Section 5)Section 6, Kerala Motor Vehicles Taxation Act, 1976S.R.O. No. 874 of 1975

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that refund is governed by Section 6 read with the Government notification SR.O 874/75, and that non-use is evidenced by endorsements (Exts. P1 and P2). The requirement of prior intimation under Section 5 is impracticable, as non-use cannot be anticipated in advance. The petitioner distinguishes exemptions from refunds, arguing they are treated differently by the statute but that refund is permissible on proof of non-use for a minimum period, with the non-use evidence here showing July 2009 non-use.

Contentions of Respondents

The respondents contend that relief is under Section 5 and requires prior intimation; refunds depend on exemption and one cannot bypass the statutory requirement by relying on Section 6. They argue that the notification cannot override statutory procedures and that Exts. P1/P2 do not automatically establish eligibility without proper processing under the appropriate provisions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodaran v. RTO Malappuram	2000(2) KLT 578	Positive	Cited to support the view that prior intimation for refund is impracticable and not mandatory, guiding the court to allow refund under Section 6 upon non-use evidence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936** **WP(C).No. 13298 of 2013 (J)** **----------------------------** ## **PETITIONER(S): --------------------------** **A. SUNIL, AGED 38 YEARS, S/O. DHAMODHAR, PRASHANTHI, SHAKTHINAGAR, PADAVU, MANGALORE, NOW RESIDING AT SREE VINAYAKA, NEAR TO JAYARAM NIVAS, UPPALA P.O., KASARAGOD-671 322.** **BY ADVS.SRI.SAJEEV KUMAR K.GOPAL, SRI.R.HARISHANKAR.** **RESPONDENT(S):** - **----------------------------** **1. THE REGIONAL TRANSPORT OFFICER, KASARAGOD, PIN-671 121.** **2. THE DEPUTY TRANSPORT COMMISSIONER, NORTH ZONE, KOZHIKODE, PIN-673 020.** **3. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM, PIN-695 001.** **BY GOVT. PLEADER MR.LIJU STEPHEN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 13298 of 2013 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1TRUE COPY OF THE ENDORSEMENT MADE BY THE REGIONAL TRANSPORT OFFICER, MANGALORE IN RESPECT OF STAGE CARRIAGES BEARING REGISTRATION NO. KA-19/AC-7227.** **EXHIBIT P2TRUE COPY OF THE ENDORSEMENT MADE BY THE REGIONAL TRANSPORT OFFICER, MANGALORE IN RESPECT OF STAGE CARRIAGES BEARING REGISTRATION NO. KA-19/C-1983.** **EXHIBIT P3TRUE COPY OF THE ORDER NO.C/1464/09 OF THE 2ND RESPONDENT DATED 25-11-2009.** **EXHIBIT P4TRUE COPY OF THE REVISION PETITION BEFORE THE TRANSPORT OFFICER AS R.P.NO.1 OF 2010.** **EXHIBIT P5TRUE COPY OF THE ORDER NO. B1/1963/TC/2010 OF THE 3RD RESPONDENT DATED 02-02-2012.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 13298 of 2013 ====================== Dated this the 9[th] day of June, 2014** ## **J U D G M E N T** The petitioner claims refund of tax, which he has paid for the quarter, commencing on July 2009 more specifically; 1/3[rd] of the amount paid as tax for the said quarter. The admitted facts are that, the petitioner was operating two stage carriages on separate inter-State permits, between Karnataka and Kerala. The petitioner was paying the taxes regularly; which has to be paid before commencement of a quarter. The petitioner's vehicles, both of them, were garaged from 01.07.2009 at Mangalore. The petitioner also intimated the same to the Transport Department of the Government of Karnataka. The Transport Department, Government of Karnataka has issued Exts.P1 and P2, which indicates that the vehicle bearing Reg. No. KA-19AC7227was garaged between 01.07.2009 and 07.08.2009 and the other vehicle KA-19/C-1983 between 01.07.2009 and W.P.(C) No. 13298 of 2013 **2** 01.08.2009. Both the vehicles hence, were not operated or used on the roads, for a period of one month ie., July 2009. The petitioner seeks refund of the tax for the said period, on the strength of Exts.P1 and P2 endorsements made by the Transport Department, Government of Karnataka. 2. The application filed by the petitioner was forwarded to the Transport Commissioner, North Zone, Kozhikode, which was rejected as per Ext.P3. Ext.P3 treated the application as one under Section 5 r/w Rule 10 of Kerala Motor Vehicles Taxation Act, 1976, (for brevity 'the Act') and found the petitioner having not complied with the mandatory requirement of prior intimation by 'G-Form' as stipulated in the Rules. Ext.P3 was confirmed in revision by Ext.P5. 3. The learned counsel appearing for the petitioner draws a distinction between Section 5 of the Act, which talks about exemption from tax and Section 6 of the Act, which speaks of refund of tax. According to the learned W.P.(C) No. 13298 of 2013 **3** Counsel, the petitioner had filed the application, under Section 6 of the Act, which has to be considered as per the notification issued by the Government. The notification issued is S.R.O No. 874 of 75. A reading of Section 6 of the Act, along with the notification, would indicate that, on satisfactory production of evidence, all non-user of the vehicles on the roads within the State; entitles refund of tax, which has been remitted. The provision for intimation within a week of the commencement of the non-use, was held to be unworkable in **Damodaran v. RTO Malappuram in [2000(2) KLT 578]** . This Court found the said provision to be unworkable, as the provision enables a refund application, only on non-user on the roads, for a minimum period of one month and an application could be filed only after such non-user. It was held that the provision for making an application, within one week from the date of commencement of non-use, is impossible of compliance. W.P.(C) No. 13298 of 2013 **4** 4. The learned Government Pleader however, would contend that by making an application for refund, the petitioner is in fact seeking an exemption from tax for which, he should have filed prior intimation. Considering that the exemption and the refund are treated differently under the Statute, the said contetnion has to be negated. Refund and exemption are treated distinctly by the Statute. It is clear that both the lower authorities have, essentially considered the matter, under Section 5 of the Act and declined the refund on the ground of no prior intimation. 5. It is to be noticed that, as held by this Court, in the aforecited decision, a prior intimation would be impossible of compliance, since it cannot, in all instances, be contemplated that the vehicle would be garaged and that too for a specific period. Any incident including an accident, cannot be anticipated and taken account of with prior intimation. Having paid the tax, on the expectation that the vehicle would be used and then confronted with a W.P.(C) No. 13298 of 2013 **5** situation wherein, the vehicle had to be garaged, an operator, could normally claim refund only if the vehicle has been garaged for more than one month; as is stipulated in Section 6 of the Act. In the present case, the vehicle registered in Karnataka was garaged with prior information to the Motor Vehicles Department in the said State and the non-use of the vehicle is evident from the endorsement made as per Exts.P1 and P2, with respect to both the vehicles. It is also significant that while exemption speaks of prior-intimation; refund does not postulate that. The payment of tax, hence reveals the bonafides of a person and the tax so levied and collected for use on the roads within the State, was visualized as eligible for refund on non-use of the vehicle in the roads, within the State, for a minimum stipulated period. This Court, hence, is convinced of the maintainability of the claim of refund made by the petitioner. 6. It is only proper that the petitioner is refunded the W.P.(C) No. 13298 of 2013 **6** 1/3[rd] amount, out of the tax remitted for the period commencing on July 2009, if non-user could be established Exts.P3 and P5 orders are, hence set aside. The matter is remanded back to the authority and the enquiry can only be on the genuineness of Exts.P1 and P2, which enquiry shall be conducted by the authorities within a period of two months from the date of receipt of a certified copy of this judgment and if found to be genuine; the authority under the taxation statute shall pass orders within two months thereafter, granting the refund. Writ Petition allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE** SB // True Copy // P.A To Judge.