Shijil V.V. v. Joint Regional Transport Officer (Taxation), Regional Transport Office, Ponani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 29TH DAY OF MAY 2014/8TH JYAISHTA, 1936** ## **WP(C).No. 29977 of 2009 (N)** **----------------------------** ## **PETITIONER :** **-----------------------** **SHIJIL V.V.,AGED 33 YEARS, S/O.PRABHAKARAN, VALIYAVEETTIL HOUSE, MARANCHERRY P.O., PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.GOPALAKRISHNA MENON SRI.M.JITHESH MENON** ## **RESPONDENT :** **----------------------------** **THE JOINT REGIONAL TRANSPORT OFFICER, (TAXATION), REGIONAL TRANSPORT OFFICE, PONNANI-679 563, MALAPPURAM.** **BY GOVERNMENT PLEADER SRI.BOBBY JOHN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.29977/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE GOODS CARRIAGE PERMIT IN RESPECT OF THE VEHICLE KL8K 6435 WHICH WAS VALID TILL 14/11/2007** - **P2 COPY OF THE ORDER OF THE DISTRICT COLLECTOR, MALAPPURAM DATED 15/10/2007** - **P3 COPY OF THE MEMO ISSUED BY THE RESPONDENT** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **ANIL K.NARENDRAN, J.** ================= ## W.P.(C)NO.29977 OF 2009 ======================= Dated this the 29[th ] day of May, 2014 ## JUDGMENT The petitioner is the registered owner of a TATA 407 Mini Lorry bearing Registration No.KL-8/K-6435, which was covered by Ext.P1 goods carriage permit valid till 14.11.2007. On 1.9.2007 the said vehicle was taken into custody by the Special Squad formed by the Tahsildar, Ponnani, alleging illegal transportation of river sand, and custody of the vehicle was handed over to the Sub Inspector, Perumpadappu Police Station, in Malappuram District. 2. Though the petitioner had challenged the seizure of the vehicle, this Court in W.P.(C)No.26784/2007 directed the District Collector to finalise the proceedings with respect to the said vehicle. Accordingly, the District Collector, Malappuram, finalised the proceedings vide Ext.P2 and the petitioner was directed to pay Rs.1,05,000/within a period of one month, in order to get release of the vehicle. The petitioner challenged Ext.P2 before this Court W.P.(C)NO.29977/09 2 by filing W.P.(C)No.34390/2007 but the said Writ Petition ended in dismissal. Against the dismissal of the above Writ Petition, the petitioner filed W.A.No.300/2009 and this Court passed an interim order to release the vehicle on payment of an amount of Rs.75,000/-. 3. According to the petitioner, the vehicle is still lying in the Perumpadappu Police Station premises, as he could not comply with the condition imposed by this Court in W.A.No.300/2009. While so, the respondent had issued Ext.P3 memo by which the petitioner was asked to remit a sum of Rs.9,680/- towards Motor Vehicles Tax in respect of the said vehicle plus additional tax, for the period from 1.10.2007 to 30.9.2009. It was in such circumstances, the petitioner has approached this Court in this writ petition challenging the demand made in Ext.P3 and for a declaration that he is entitled to exemption from Motor Vehicles Tax for the period for which the vehicle is detained in the police station. 4. A counter affidavit has been filed on behalf of the respondent, contending that, the petitioner’s goods carriage is having valid permit from 22.9.2007 to W.P.(C)NO.29977/09 3 21.9.2012. Tax is in arrears with effect from 1.10.2007 onwards. Hence demand notice for the period from 1.10.2007 to 13.9.2009 for an amount of Rs.9618/- plus additional tax has been demanded. The petitioner’s vehicle has been seized by the revenue authorities on 1.9.2007 for illicit transportation of river sand. However the petitioner never informed the said fact in the office of the respondent or filed Form G. Hence demand notice was issued on 30.9.2009. Tax for the period from 1.10.2007 will be exempted after releasing the vehicle from the Police Station. In order to get exemption, the petitioner has to apply before the respondent, after the vehicle is released from the Police Station. In such circumstances, according to the respondent, the petitioner is not entitled for any of the reliefs prayed for. 5. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondent. 6. It is not in dispute that the petitioner’s goods carriage bearing Registration No.KL-8/K-6435, in respect of which Ext.P3 demand notice has been issued for payment of Motor Vehicles Tax for the period from 1.10.2007 to W.P.(C)NO.29977/09 4 13.9.2009, was taken into custody by the revenue authorities on 1.9.2007 for illicit transportation of river sand and the said vehicle is still lying in the Police Station premises as the petitioner could not comply with the condition imposed for release of the said vehicle. In the counter affidavit filed on behalf of the respondent it is admitted that on 1.9.2007, the petitioner’s vehicle was seized by the revenue officials for illicit transportation of river sand and the said vehicle is still lying in the premises of the Police Station. But, according to the respondent, the petitioner never informed the seizure of vehicle in the office of the respondent or filed Form G. and for getting exemption from tax for the period from 1.10.2007, the petitioner can apply before the respondent, after the release of the vehicle from the Police Station. 7. Therefore, the only question that arises for consideration is whether the petitioner can be made liable for payment of the Motor Vehicle Tax demanded in Ext.P3, for the period from 1.10.2007 to 13.9.2009, when admittedly his vehicle is in Police custody from 1.9.2007 onwards. 5 W.P.(C)NO.29977/09 8. The levy of Motor Vehicles Tax is under Section 3 of the Kerala Motor Vehicles Taxation Act, 1976. Going by Sub-section (1) of Section 3, tax shall be levied on every motor vehicle used or kept for use in the State, at the rate specified for such vehicle in the Schedule. As per Sub-section (3) of Section 3, the registered owner of, or any person having possession or control of, a motor vehicle shall, for the purposes of the Act be deemed to use or keep such vehicle for use in the State, except during any period for which no tax is payable on such motor vehicle under Sub-section (1) of section 5. 9. But, Section 22 authorises the Government to grant exemption or reduction in the rate of tax or modification in regard to the tax liability with prospective or retrospective effect. As per Section 22 of the Act, the State Government is empowered to make an exemption or reduction in the rate of tax or other modification, either prospectively or retrospectively, in regard to the tax payable under the Act or under the Kerala Motor Vehicles Taxation Act, 1963 or the Kerala Motor Vehicles (Taxation of Passengers and Goods) Act, 1963, in respect of any 6 ## W.P.(C)NO.29977/09 motor vehicle or class of motor vehicles or in respect of any motor vehicle or class of motor vehicles using a specified route, subject to such terms and conditions as may deem fit. In exercise of the powers conferred by Section 22 of the Act, the Government has issued SRO No.878/75 granting exemption to certain classes of motor vehicles from payment of tax and Clause 27 of the said notification gives exemption to all motor vehicles held in the custody of Police or other authorities for offences other than non-payment of tax, for the period during which such vehicles are in such custody. 10. In **Satheesh v. Joint Regional Transport Officer (2009 (1) KLT 420)** , a Division Bench of this Court held that, when the seizure of vehicle is for reasons other than non-payment of tax, the claim for exemption from payment of tax for the period during which such vehicle is under the custody of Police or other authority, covered by SRO.No.378/75, is not in any manner negatived by the dictum laid on by the Full Bench of this Court in **Regional Transport Officer v. Abdul Rahman (2007** 7 W.P.(C)NO.29977/09 ## **(1) KLT 613)** . Paragraphs 8, 11 and 12 of the judgment read thus; 8. Before referring to the judgment of the Full Bench, it will only be appropriate to refer to the principal contention raised by the appellant that he is entitled to be exempted from payment of tax under the Act by virtue of SRO No. 878/75 item No. 27 of the said notification which exempted those vehicles which are in the custody of the police or other authorities, from payment of tax, provided, such vehicles were taken into custody for reasons other than for payment of tax. In the present case, it is admitted by the respondent in Ext. P5 that the tax for the quarter ending 31/03/2004 was actually remitted on 23/01/2004. It is further admitted that the vehicle was taken into custody on 25/02/2004. It is clear from Ext. P3 as well that the seizure of the vehicle was, therefore, for reasons other than non-payment of tax. If that be so, then it is clear that the appellant/petitioner is entitled to the benefit of SRO No. 878/75. 9. xxxx xxxx xxxx 10. xxxx xxxx xxxx 11. In our view, the Full Bench was really concerned with the question of either a claim for exemption under S.5 of the Act or a claim for refund of the tax already paid under S.6 of the Act, in cases where the vehicle is taken into custody, for non-payment of tax. In cases coming under the former category, the Full Bench held that a claim for 8 W.P.(C)NO.29977/09 exemption will be maintainable in cases where the vehicle is taken into custody for non-payment of tax provided 'G' form is filed in time. It was further held that in the cases coming under the latter category a claim for refund of tax will also lie for the period during which the vehicle was detained under S.11. What, therefore, is worthy of being reiterated is that the Full Bench was concerned with cases of detention of vehicles for non-payment of tax. Even in such cases, a claim for exemption and a claim for refund was found to be maintainable, subject to compliance with the formalities prescribed under the statute. 12. The present case obviously stands on a different footing. The seizure of the vehicle on 25/02/2004 was not for non-payment of tax. It was for other minor reasons. One of them being nonproduction of evidence regarding payment of tax at the time of seizure. That the tax for the quarter ending 31/03/2004 had actually been paid on 23/01/2004 is not a matter which is in dispute at all. It is admitted by the respondent himself, as evidenced by Ext. P5. If that be so, the seizure of the vehicle on 25/02/2004 was for reasons other than non-payment of tax. Consequently, the claim for exemption from payment of tax as claimed by the appellant would be squarely covered by SRO No.878/75. Such a claim is not, in any manner, negatived by the dictum laid down in Abdurahiman's case. We are of the view that the finding arrived at W.P.(C)NO.29977/09 9 by the learned Single Judge, in the circumstances, is unsustainable.” 11. In the case on hand, the respondent has no case that the seizure of the petitioner’s goods carriage was for non-payment of Motor Vehicles Tax. It is the admitted case of the respondent that the petitioner’s vehicle which was seized by the revenue officials on 1.9.2007 for illicit transportation of river sand is still lying in the premises of the Police Station. In such circumstance, following the principle laid down by a Division Bench of this Court in Satheesh’s case (supra) it has to be concluded that, the claim for exemption from payment of tax for the period during which the petitioner’s goods carriage is under the custody of Police is squarely covered by SRO.No.378/75, as the seizure of the petitioner’s vehicle on 1.9.2007 is for reasons other than non-payment of tax. 12. In such circumstances I find no justifiable reasons for the respondent in issuing Ext.P3 demanding Motor Vehicles Tax in respect of the petitioner's goods carriage bearing Registration KL-8/K-6435 for the period from 1.10.2007 to 13.9.2009 as the said vehicle is under W.P.(C)NO.29977/09 10 police custody. Therefore, the demand made in Ext.P3 is unsustainable and the same is set aside. The writ petition is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** R.AV