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Judgment
Petitioner claims to be a person who had financed the purchase of motor vehicle by financing the third respondent who had purchased two vehicles by utilising the amount advanced by the petitioner. The vehicles were registered bearing Registration No. KA-4-A-6057 and Registration No. KA-04-B-6057. Petitioner''s name figured as the owner in the Registration certificate issued in respect of these two vehicles and the third respondent figured as the hirer.
The controversy in the present writ petition is about the non-payment of the tax due in respect of the vehicles for the period from 1-10-1999 to 31-12-2000 amounting to Rs. 2,82,745/- and from 31-12-2000 to 1-4-2001 amounting to Rs. 1,79,930/- as indicated in Annexure F to the writ petition. It is not in dispute that the vehicles were being used on the road by the third respondent during the relevant time. It appears, the third respondent having defaulted in making payment in respect of the amounts due as per the agreement between the parties, the petitioner repossessed the vehicles as on 23-10-2000 and thereafter vehicles are in possession of the petitioner.
Though it is the assertion of the petitioner that it has so intimated such re-possession as on 23-10-2000, the respondents dispute this by saying that the respondents were not aware of such re-possession and as to when it was taken over by the petitioner. The third respondent, user of the vehicle, not having paid the tax due in respect of the two vehicles for the period mentioned above and the vehicle subsequently being in possession of the petitioner, the respondent authorities issued a demand notice to the petitioner calling upon the petitioner to pay this amount of tax, which was the tax due in respect of the vehicles and invoking the provisions of Section 9 of the Karnataka Motor Vehicles Taxation Act, 1957 (''the Act'' for short). The petitioner, being aggrieved with such a demand, had preferred appeals before the Deputy Commissioner for Transport, Bangalore Division, Bangalore, in Appeal Nos. 15 and 16 of 2003. In fact, petitioner, before filing such appeals, had approached this Court by filing writ petitions bearing Nos. 22409 & 22472 of 2002 and this Court, while rejecting the writ petitions observed that it is open to the petitioner to avail of the remedy under the Act itself and that is how the appeals came to be filed at that time.
The Appellate Authority having dismissed the appeals, particularly purporting to follow the ratio laid down by this Court in the case of Vijayakumar Mane Vs. The Regional Transport Officer, Dharwad and Others, , which is a decision of a learned single Judge of this Court, affirmed by the Division Bench in W.A. 1085/00 decided on 21-1-2003, the petitioner is before this Court questioning the legality of the Appellate order and has also challenged the validity of the provisions of Section 9 of the Act. .
Sri Nataraj, learned Counsel appearing for the petitioner submits that at the first instance the Appellate Authority was not right in holding that the appeals were required to be disposed of following the decisions of this Court, particularly as rendered in W.A. 1085/00. Learned Counsel submits that on facts the present case is distinguishable in the sense that whereas in the case decided by this Court the subject matter was the liability of a person like a financier or a hirer who had re-possessed the vehicle and the liability subsequent to the re-possession and who had also not intimated the non-user of the vehicle on the road, in the present case, the liability sought to be fastened on the petitioner is in respect of a period when it was being used by the third respondent hirer and that only a portion of the tax liability is for a period subsequent to the petitioner having re-possessed the vehicle and after intimation according to the learned Counsel for the petitioner. On the question as to whether the non-user of the vehicle had been intimated in accordance with the requisite procedure or not, it is not necessary for me to go into this aspect inasmuch as ultimately such non-user is proved and tax had been paid for such period of non-user of the vehicle on the road, person paying the tax can always seek for refund of that amount by filing an application u/s 7 of the Act. If at all, the controversy regarding intimation etc., may become relevant while examining the application u/s 7 of the Act. In so far as the present petition is concerned, the petitioner being a person who has repossessed a motor vehicle in respect of which certain tax liability had not been discharged, the provisions of Section 9 are squarely attracted and to that extent the petitioner being a person possessing the vehicle as of now, cannot escape the consequence of Section 9 of the Act.
However, Sri. Nataraj, learned Counsel appearing for the petitioner also submits that the petitioner has challenged the validity of the very provisions of Section 9 of the Act; that the provisions of Section 9 of the Act is clearly contrary to the provisions of Section 3 of the Act, which is the charging Section in the Act and as such fastening liability u/s 9 of the Act should be held to be not as per the Scheme and object of the Act and should be declared to be invalid and unconstitutional.
Sections 3 and 9 of the Act read as under :--
"3. Levy of Tax :--(1) A tax at the rates specified in Part A of the Schedule shall be levied on all motor vehicles suitable for use on roads.
Provided that in the case of a motor cycle (including motor scooter and cycle with attachment for propelling the same by mechanical power) the tax shall be levied at the rates specified in Part "A1" of the Schedule:
Provided further that in the case of tractors, trailers and power tiller trailers,--
(a) owned by agriculturists and whose main source of income is from agriculture;
(b) owned by agricultural Co-operative Societies including Vyavasaya Seva Sahakari Sangha Niyamitha, Raitha Seva Sahakari Sangha Niyamitha, Sericulture-cum-Farmers Co-operative Societies, Large Sized Cooperative Societies, Co-operative Agricultural Banks, Small Sized Co-operative Societies, Agricultural Credit Societies, Multipurpose Co-operative Credit Societies, Doddapramanada Prathamika Pathina Sahakari Sangha, Primary Co-operative Agriculture and Rural Development Bank and Services Co-operative Societies; and
(c) not falling under Clauses (a) and (b) above but used exclusively for carrying out such agricultural operations as may be prescribed,
the tax shall be levied at the rates specified in Part "A2" of the Schedule :
Provided also that :
(a) in case of Tricycles including autorickshaw not used for transportation of goods or passengers for hire or reward and vehicles permitted to carry (excluding driver) not more than three persons, the tax shall be levied at the rates specified in Part A4 of the Schedule.
(b) In case of motor cars including Jeeps other than those owned by companies and imported cars of the year 1985 and later models, the tax shall be levied at the rates specified in Part A5 of the Schedule.
Explanation :-- A motor vehicle of which the certificate of registration is current shall, for the purposes of this Act, be deemed to be a vehicle suitable for use on roads.
NOTE : For the purpose of the above Explanation the certificate of registration shall, notwithstanding anything contained in Section 38 of the Motor Vehicles Act, 1939 (Central Act IV of 1939), be deemed to be current even if the certificate of fitness is not effective provided such certificate of fitness has not been cancelled.
(2) Notwithstanding anything contained in Sub-section (1), or Section 4, taxes at the rates specified in Part B of the Schedule shall be levied on Motor Vehicles suitable for use on roads, which are in the State for period shorter than a quarter, but not exceeding thirty days.
(3) In the case of motor vehicles in respect of which airy reciprocal arrangement relating to taxation has been entered into between the Government of Karnataka and any other State Government, the levy of tax shall, notwithstanding anything contained in this Act, be in accordance with the terms and conditions and such reciprocal arrangement :
Provided that the tax leviable under any such arrangement shall not exceed the tax leviable under the Schedule :
Provided further that the terms and conditions of every such reciprocal arrangement shall be published in the Official Gazette, and a copy thereof shall be laid before the State Legislative Assembly.
(4) Notwithstanding anything contained in Sub-sections (1) and (2), a special additional tax at the rates specified in Part ''D'' of the Schedule shall be levied on motor vehicles suitable for use on roads carrying passengers or goods in excess of the permitted capacity of the vehicles."
"9. Liability to pay arrears of tax:-- (1) If the tax leviable in respect of any motor vehicle remains unpaid by any person liable for the payment thereof and such person before having paid the tax has transferred the ownership of such vehicle or has ceased to be in possession or control of such vehicle, the person to whom the ownership of the vehicle has been transferred or the person who has possession or control of such vehicle shall be liable to pay the said tax to the taxation authority.
(2) Nothing contained in this section shall be deemed to affect the liability of the person, who has transferred the ownership or has ceased to be in possession or control of the vehicle, to pay the said tax."
What has been demanded from the petitioner is an amount that had become payable from a person who was making use of the vehicle and in terms of the charging Section, namely Section 3 of the Act. The liability had already been created. Admittedly, that liability had not been discharged. What all Section 9 of the Act provides for is, if in respect of a vehicle, there was already a liability and even before meeting the liability the ownership of such a vehicle is transferred to any other person or if such a vehicle is possessed by some other person, the subsequent owner or even the person in possession becomes liable to discharge the prior liability that had accrued in respect of the vehicle, notwithstanding such liability continuing on the erstwhile owner also. Section 9 of the Act is an enabling provision to recover the tax due under the Act and it also enables the tax due to be recovered from persons on whom there was no charge, but who subsequently get the possession of the vehicle in respect of which vehicle the tax amount due under the Act has not been paid. No new liability is sought to be created u/s 9 of the Act. There is nothing inconsistent or even contrary in the provisions of Section 9 of the Act vis-a-vis the provisions of Section 3 of the Act. It cannot also be held that Section 9 is ultra vires the provisions of Section 3 of the Act, inasmuch as both are provisions which are figuring in the Act itself and have their respective purposes and roles.
Though Sri Nataraj, learned Counsel for petitioner contends that there is no liability on the person who merely possesses the vehicle like that of a financier, who can re-possess the vehicle later for default in repayment; that the financier is not a owner of the vehicle and as such the liability should be understood in so far as it relates to the liability on the person to be only on a "person possessing a vehicle" consequent to changing of ownership alone on a proper reading of Section 9 of the Act very clearly makes a distinction between "a person who becomes a subsequent owner of the vehicle" and also such person "who are in possession of a vehicle". It is not necessary that the possession is only consequent to the person having become the owner of the vehicle which is in arrears of tax. The liability u/s 9 of the Act is on all such persons who either become owners of the very vehicle subsequent to the creation of the liability or such persons who get possession of the vehicle in any other capacity also. The provision occurring in a taxing statute and being an enabling provision to enable the revenue to collect the tax amounts that has already become due, and being a provision providing a mode of recovery of arrears of tax, there is no occasion to artificially restrict the scope and intent of the provisions of Section 9 of the Act reading the word ''are'' as ''and'' and to understand that the possession of the vehicle should be only on becoming the owner of the vehicle and not otherwise.
In the circumstances, the contentions urged on behalf of the petitioner cannot be accepted and the writ petitions are dismissed.
Petitioner is however given liberty to claim refund of any part of tax if he is able to establish that the vehicle in fact was not actually on the road and necessary intimation in this regard had been given within the time and by filing an application for such purpose u/s 7 of the Act. In all other aspects, the petitions are dismissed.
The appearance of Government Pleader Smt. Niloufer Akbar, who has appeared on behalf of respondents and who has made submissions, is recorded and the Government Pleader may file memo of appearance within a period of four weeks.