Gopinath Ray vs The Under Secretary-cum- Taxing Authority, Passengers Tax, State Transport Authority and Another

R.N. Misra, J.—Petitioner is owner of a contract carriage vehicle bearing registration No. ORU 2756. Contract carriage vehicles were made liable to passengers tax in view of the amendments brought about to the Orissa Motor Vehicles (Taxation on Passengers) Act, 1972 (hereinafter referred to as the "Act"). Petitioner challenged the vires of the amending statute in a writ application (O.J.C. 763 of 1972) and ultimately lost before this Court. Petitioner alleges that during the pendency of the writ application, he submitted a declaration to the Taxing Authority of Puri u/s 9 of the Bihar and Orissa Motor Vehicles Taxation Act that the vehicle was off-road from 1-7-1972 up to 3rd of June, 1973. Opposite - Party No. 1 being the prescribed authority under the Act raised tax demand at the rate of Rs. 769/ - per month and required the Petitioner to pay the same. Petitioner alleges to have informed the Opposite Party No. 1 that he had already withdrawn the vehicle from plying during the relevant period on intimation to the Taxing Officer of Puri and therefore, in respect of the period for which the declaration of of road was valid, no assessment be made and the demand be withdrawn. In the meantime the contract carriage permit issued for the vehicle having expired, Petitioner applied for renewal on 5-2-1975 as provided u/s 58(2) of the Motor Vehicles Act. Petitioner alleges that renewal was not granted on the ground that Petitioner was a defaulter in the matter of payment of tax. Petitioner made an application for review but the same was rejected. In the writ application, Petitioner has asked for quashing of the demand and a direction to the opposite parties to grant renewal of the permit.

Opposite party No. 1 filed a counter affidavit taking the stand that the off-road declaration furnished to the Taxing Authority did not absolve the Petitioner as owner of a taxable vehicle under the Act from filing returns as provided under the scheme of the Act. Full opportunities had been given to the Petitioner and he defaulted and while taxation at the full rate could be demanded, the demand has been raised at a concessional rate as if there had been a composition. Petitioner having failed to satisfy the legitimate demand raised under the statute, it was open to the permit-granting authority not to consider the claim of renewal until Petitioner paid up the arrears of tax.

Petitioner filed a rejoinder to which a further counter affidavit has also been filed by Opposite Party No. 1.

The copy of the off-road intimation furnished by the Petitioner to the Taxing Authority of Puri has been produced before us No challenge has been offered as a fact relating to the I declaration of off-road. There is also no material on the record to hold that notwithstanding the declaration given by the Petitioner the vehicle was on the road actually plying during the period covered by the intimation. These facts, however, as rightly argued by learned Standing Counsel for the Transport Department, would not entitle Petitioner to any relief in this application.

Petitioner no more challenges that the vehicle owned by him is a taxable vehicle within the meaning of Section 2(h) of the Act. Section 3 is the charging section. Section 6 obligates every owner of a taxable vehicle to make a return in the manner prescribed and Section 7 deals with demand of tax. The procedure of assessment is covered by Section 8. Provisions for appeal and revision as also review have been made under the Act. There is no dispute before us that in respect of Petitioner''s vehicle, Opposite Party No. 1 was the prescribed authority. That is so in view of Rule 2(g) of the Rules made under the Act. There is no provision in the statute exempting a holder of a permit in respect of a taxable vehicle to cease to file a return in due compliance with the statutory mandate once a declaration off-road of the vehicle is furnished to the Taxing Authority. On the other hand, in view of the mandatory provision in the statute, the return had to be filed at periodic intervals as provided. The authorities under the Motor Vehicles Taxation Act and the present Act being different and the statute having prescribed an obligation for making of a return, declaration of off-road and communication thereof to the Taxing Authority could not exempt the holder of a taxable vehicle under this Act in the matter of, making of returns provided by statute. Petitioner was liable, therefore, to make the returns on the basis whereof assessment had to be made. There is no force in Mr. Mohanty''s contention for the Petitioner that in regard to a vehicle declared to be off the road, no liability attached under the Act to make returns.

Learned Standing Counsel contended that Petitioner had been given several opportunities for complying with the statutory requirement. It is stated that a notice had been issued on 7-7-1972 u/s 8(2) of the Act requiring the Petitioner to specify the prescribed authority the reasons as to why returns had not been furnished though required to be filed by 15th of each succeeding month. On 13th of November. 1972, Petitioner was required to appear for assessment. He took time and the matter

was adjourned on two occasions. On the third occasion, he wanted two weeks'' time by application dated 15th of March, 1973 but did not take any step. Ultimately on 6-6-1973. assessment was made and demand notice was issued on 12-6-1973. Learned Standing Counsel contends that the Petitioner was not entitled to make any grievance in view of several opportunities afforded to him by the prescribed authority. We do not intend to deal with this aspect finally as Mr. Mohanty gives us to understand that the Petitioner would still prefer an appeal and ask for condonation of delay. Whether the delay would be condoned or not is not a matter for us to decide and the appellate authority if moved in that direction would appropriate deal with this aspect. Our conclusion that giving an off-road declaration to the Taxing Authority under the Motor Vehicle Taxation Act does not exonerate the owner of a taxable vehicle from making of the return be taken as conclusive.

In view of the submission of Mr. Mohanty that the Petitioner would prefer an appeal, we do not propose to dispose of the matter finally and would decline, therefore, to decide the other questions. Our rejecting the writ application may not stand in the way of Petitioner preferring an appeal. We make no order as to costs.

N.K. Das, J.

I agree.