Hariharan P.S. vs Tax Officer and R.T.O. and Another

The petitioner at the relevant point of time, i.e., 1972 was the owner of an articulated public carrier vehicle bearing registration No. MYD 73/4. The vehicle was covered by a public carrier permit bearing No. 101/67-68 issued by the secretary, Regional Transport Authority, Bangalore. The permit was valid up to 14-9-1972. The petitioner has averred that the vehicle in question was giving him constant mechanical trouble as it was old and therefore, in order to gain the tax exemption under the Karnataka Motor Vehicles Taxation Act, he surrendered the necessary documents before the quarter ended on 31-3-1972. He has not produced any evidence for having surrendered the documents such as the receipt from the concerned authority.

The petitioner was being assessed to tax under the Karnataka Motor Vehicles (Taxation on Passengers and Goods) Act, 1961, hereinafter referred to as ''the Act''). The petitioner was called upon to appear before the 1st respondent Tax officer on 7-6-1974 for the purpose of completing the assessment for the period 1-4-1972 to 30-4-1974 in respect of the petitioner''s vehicle, under the Act. The petitioner did not appear before the 1st respondent, admittedly on that date. In the result, the ex parte order of assessment came to be made by the 1st respondent and a notice demanding a sum Rs. 2500 for the aforementioned period on the basis that the vehicle was covered by a public carrier permit and the vehicle was operated on the road at the rate of 2500 miles per month. Therefore, the tax was levied at Rs. 100 per month for the period in question. The assessment order and the demand notice were served on the petitioner on 10-7-74 and the same was received by his wife and she mislaid it. The petitioner applied on 10-9-1974 requesting for a fresh assessment order and a demand notice so that he could prefer an appeal. Instead he received on 15-2-1975 one more demand notice imposing in addition to the tax assessed penalty for not having paid the assessed tax as demanded earlier in time. Thereafter the petitioner addressed several letters to the 1st respondent for supply of copies of the demand notice and the assessment order furnishing the court fee necessary for that purpose but copies were not supplied by the 1st respondent. The petitioner, thereafterwards, received recovery notice from the 2nd respondent-Tahsildar, Bangalore North Taluk, Bangalore in the sum of Rs. 2750-50 including the penalty for late payment. Copies of the demand notice and the assessment order, however, came to be given to the petitioner on 17-6-76 by the 1st respondent. The penalty order dt. 15-11-1974 imposing penalty of Rs. 250 was also given to the petitioner. The petitioner has produced the public carrier permit at Ex. A, the copy of the recovery notice issued by the 2nd respondent at Ex. E, the copy of the first demand notice issued by the 1st respondent at Ex. H and the assessment order for the period 1-4-1972 to 30-4-1974 bearing the date 17-6-1976 at Ex. J to the petition.

Within a few days after obtaining the certified copies of the demand notice and the assessment order he has filed this petition inter alia contending that in the circumstances of the case, this Court should interfere under Art. 226 of the Constitution notwithstanding that a statutory appeal is provided as the demand notice pursuant to the assessment order impugned is without the authority of law and as there was inherent lack of of jurisdiction for the 1st respondent to pass the assessment order in question. Consequently, it is prayed that the recovery notice issued by the 2nd respondent should also be quashed as the demand notice and the assessment order were themselves illegal.

Respondent-1 has filed his statement of objections. The stand taken by the 1st respondent is that the petitioner had the opportunity to appear before him for concluding the assessment and not having availed of that opportunity he could not now complain about the assessment order impugned in the petition. It is also stated for the 1st respondent that the petitioner not having availed of the right of appeal under the Act, cannot be permitted to question the assessment order and the consequential demand notice in these proceedings without exhausting the statutory remedies. Further, on facts it is asserted for the 1st respondent that the petitioner was not stating truth when he has asserted that he had surrendered the registration certificate and other documents relating to his vehicle in question in order to avoid tax liability even before the quarter ending 31-3-1972. There is no denial by the 1st respondent in the statement of objections that the public carrier permit of the petitioner in respect of his vehicle expired on 14-9-1972 and further there is no denial that the same was not renewed.

No attempt is made by the 1st respondent in the statement of objections to sustain the levy for the entire period. On the other hand, it is seen that this Court as far back as 10-1-1975 held in Damodara Suvarna v. State of Karnataka, (1975)2 Kar.L.J. Sh.N. 15, p. 15, that where for the relevant period the vehicle had no permit at all the provisions of the Act of 1961 were not attracted at all.

In the instant case the petitioner has demonstrated that his permit expired on 14-9-1972 and any levy of tax beyond the period of permit would be a levy of tax without jurisdiction and without the authority of law.

In that view of the matter, the impugned assessment order in so far as it purports to levy tax on the petitioner beyond 14-9-1972 is liable to be quashed. That the petitioner is guilty of laches to some extent does not cure the inherent defect in the impugned order of assessment. Therefore, that an alternative remedy exists which the petitioner did not avail of is also no bar for this court to interfere under Art. 226 of the Constitution in a case like this.

In the result, the rule issued is made absolute. The impugned assessment order is quashed to the extent it levies tax for a period beyond 14th September, 1972. In respect of levy of tax between 1-4-1972 and 14-9-1972 the assessment order is valid. Consequently, the impugned demand notice is quashed with liberty reserved to the 1st respondent to issue a fresh demand notice for the tax due up to 14-9-1972.

As the assessment order and the notice of demand have been quashed it is necessary also to quash the recovery notice issued by the 2nd respondent. Therefore, the recovery notice is also quashed.

In the circumstances of the case there will be no order as to costs.