N.SASI v. Secretary, Regional Transport Authority, Attingal / Taxation Officer, Attingal & The Transport Commissioner, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 14TH DAY OF JUNE 2012/24TH JYAISHTA 1934** ## **WP(C).No. 28502 of 2007 (R)** **---------------------------------------** **PETITIONER:** **-------------------** **N.SASI, MERYLAND, MULLARANCODE, CHENNANCODE, VADASSERIKONAM P.O., VARKALA, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER N.MADHU, S/O NARAYANAN, DANALAYA MULLARANCODE, CHENNANCOD P.O., VADASSERIKONAM, VARKALA, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.T.P.SAJAN.** **RESPONDENTS:** **------------------------** **1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, ATTINGAL/TAXATION OFFICER, ATTINGAL.** **2. THE TRANSPORT COMMISSIONER, STATE OF KERALA, THIRUVANANTHAPURAM.** ## **R1 & R2 BY SPL.GOVERNMENT PLEADER SRI. MANOJ P. KUNJACHAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.28502/2007-R:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: COPY OF THE R.C. PARTICULARS SHOWING THE ENDORSEMENT OF TAX REMITTANCE.** - **EXT.P.2: COPY OF THE `G' FORM FOR THE PERIOD 1/1/2006 TO 31/3/2006.** - **EXT.P.3: COPY OF THE `G' FORM FOR THE PERIOD 1/4//2006 TO 31/3/2007.** - **EXT.P.4: COPY OF THE 1ST TEMPORARY PERMIT ISSUED DTD. 04/05/2006 FOR THE PERIOD FROM 04/05/2006 TO 23/05/2006.** - **EXT.P.5: COPY OF THE LAST PERMIT DTD. 22/08/2007 FOR THE PERIOD FROM 31/08/2007 TO 19/09/2007 ISSUED TO THE PETITIONER.** - **EXT.P.6: COPY OF THE JUDGMENT DTD. 02/11/2006 IN W.P.(C).NO.26092/06.** - **EXT.P.7: COPY OF THE PROCEEDINGS OF THE R.T.A. DTD. 16/11/2006.** - **EXT.P.8: COPY OF THE ORDER DTD. 24/08/2007 OF THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM.** - **EXT.P.9: COPY OF THE AFFIDAVIT DTD. 20/04/2007.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **A.M.SHAFFIQUE, J.** **= = = = = = = = = = = = = = W.P.(C) No.28502 of 2007** **= = = = = = = = = = = = = = = = = = Dated this the 14th day of June, 2012** ## **JUDGMENT** Petitioner challenges Ext.P8 order of the Transport Commissioner, Thiruvananthapuram. By Ext.P8 order the claim for exemption from payment of motor vehicle tax in respect of vehicle bearing Registration No.KL-01-G 6465 was rejected by the Authority. 2. The petitioner, owner of the said Stage Carriage Vehicle, submitted Exts.P2 and P3 G forms for exemption from payment of Motor Vehicle Tax on the ground that the vehicle is not in use. However, the Regional Transport Officer did not certify the exemption and demanded an amount of Rs.1,19,640/- with additional tax as per order No.C/5729/SZ/06 dated 03.02.2007. The matter was taken in revision which was decided by the Transport Commissioner. It is found in Ext.P8 that though the petitioner had submitted G forms on an inspection by the Assistant Motor Vehicles ## **W.P.(C) No.28502 of 2007** -:2:- Inspector on 5.5.2006 and 28.9.2006, the vehicle was not seen in the carriage mentioned in the G forms. On that basis the revision was dismissed. Hence it was found that the nonuse of the vehicle was not established by the petitioner. Hence the revision was dismissed. 3. The learned counsel for the petitioner contends that he had submitted G forms in time which was accepted by the Transport authority and during the relevant time in respect of which he had sought exemption, he was operating another vehicle with valid permit. Hence according to him the nonuse of the old vehicle was clear and the authorities ought to have certified exemption for payment of tax. The learned counsel also referred to an affidavit(Ext.P9) given by one M.H.Siddique who was purportedly the owner of the workshop. As per Ext.P9 affidavit it is stated that the said vehicle was sold on 30.05.2006 and it was dismantled. 4. Hence it is argued that, in the absence of any evidence to show that the petitioner was using the said vehicle, the authorities ought to have exempted the petitioner from paying the tax. ## **W.P.(C) No.28502 of 2007** -:3:- 5. On the other hand the learned Government Pleader appearing for the respondents- State contends on the basis of Section 5 of the Motor Vehicles Taxation Act and Rule 10 of the Rules frames under the Act, that in so far as the authorities have not certified exemption from payment of tax, the petitioner cannot claim the same as a matter of right. The learned Government Pleader further submitted that the vehicle ought to have been kept in the premises which was shown in the G Forms. When it is clearly indicated in the G forms that the vehicle was kept in a particular workshop, without informing the authorities concerned it should not have been removed. Therefore, it is the case of the respondent that non use of the vehicle was not proved by the petitioner and therefore he was not entitled for any concession in this regard. 6. The learned counsel for the petitioner also relies on the judgment of the Supreme Court in **Travancore Tea Co.Ltd vs. State of Kerala** (1980) KLT 568) to contend for the position that the liability to pay tax arises only if the **W.P.(C) No.28502 of 2007** -:4:- vehicle is used and when Ext.P2 and P3 had been admittedly given, it indicates that the vehicle was not in use. In fact Section 5 of the Act also indicates that once the intimation is given it shall be deemed that the vehicle was not in use. But when a question arises as to whether the vehicle was in use or not, the burden of proof is on the person claiming the benefit as provided under Section 5(3) of the Act. In that view of the matter, if the petitioner fails to prove that vehicle was "not in use", the petitioner will not get the benefit of the exemption as provided under Section 5 read with Section 10 of the Rules. 7. In regard to the contention that the petitioner had dismantled the vehicle, the learned Government Pleader submits that the petitioner had not complied with Section 55 of the Motor Vehicle Act and no such intimation was given to the Transport authority. 8. Having regard to the contentions urged by the petitioner, I feel that a further opportunity has to be given to the petitioner to substantiate that the vehicle was not in use during the relevant time, especially in view of the fact that the petitioner was operating another vehicle in the same route as **W.P.(C) No.28502 of 2007** -:5:- a substituted service. This matter requires consideration by the Revisional Authority. In that view of the matter, I feel that an opportunity has to be granted to the petitioner. Hence Ext.P8 is set aside and the revisional authority is directed to consider the matter afresh after giving an opportunity to the petitioner to produce necessary materials to substantiate his contentions in the matter. The matter shall be disposed of within a period of three months from the date of receipt of a copy of this judgment. Until decision is taken by the revisional authority, further steps pursuant to Ext.P8 shall be kept in abeyance. A.M.Shaffique, Judge. sj # **W.P.(C) No.28502 of 2007** -:6:-