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Judgment
R.K. Patra, J.—Demand of tax made u/s 3-A of the Orissa Motor Vehicles Taxation Act, 1975 for the period from January, 1992 to December, 1995 and January, 1996toSeptember,1996asperAnnexures-3 and 6 and the revisional order dated 13.6.1997 as per Annexure-8 is under challenge in this writ petition.
Case of the petitioner is that he is the owner of the vehicle (Truck) bearing registration number WXK 7067. He was plying the vehicle after obtaining necessary permission from the competent authority and was paying motor vehicle tax regularly. He obtained route permit for the said vehicle which was valid upto 31.1.1991. He had made payment of tax up to March,1991. The fitness certificate for the said vehicle was valid upto 18.12.1991. Unfortunately, the said vehicle met with an accident on 23.1.1991. The Inspector of Motor Vehicles, Sundargarh caused inspection of the vehicle and cancelled the fitness certificate by his letter dated 24.1.1991 at Annexure-1. The petitioner, immediately after the accident, informed the Taxing Officer-cum-Regional Transport Officer, Rourkela about it and submitted off-road intimation for the period from January, 1991 to December, 1991. He, however, did not submit off-road-intimation for the period from January, 1992 to December, 1995 under bonafide impression that he was not required to do so as the vehicle did not possess valid certificate of fitness. While the matter stood thus, the Taxing Officer-cum-Regional Transport Officer, Rourkela in his letter No. 176 dated 10.1.1996 at Annexure-Scalled upon the petitioner to pay a sum of Rs. 27,760.00 for different period as indicated below:
period Amount of tax due under item - 3 of the Schedule-1
1/92 to 3/92 .... Rs. 1,850.00
7/92 to 3/93 .... Rs. 5,550.00
4/93 to 3/94 .... Rs. 7,400.00
4/94 to 3/95 .... Rs. 7,400.00
4/95 to 12/95 .... Rs. 5,550.00
Total Rs. 27,750.00
Against the aforesaid demand, the petitioner preferred appeal before the Chairman, Regional Transport Authority, Sundargarh (vide M.V.T.Appeal No. 4of 1996). By order dated 23.8.1996(Annexure-6) the appellate authority dismissed the appeal. The Taxing Officer-cum-Regional Transport Officer, Rourkela subsequently in his letter No. 8071 dated 7.10.1996 further directed the petitioner to pay a sum of Rs. 6851.00 as tax (for the period from 1.1.1996 to 31.3.1996 -Rs. 2284.00, from 1.4.1996 to 30.6.1996 - Rs. 2392.00 and for the period from 1.9.1996 to 30.9.1996 - Rs. 2176.00). The petitioner being aggrieved by the demand at Annexure-6 filed revision before the Transport Commissioner, Orissa-cum-Chairman, S.T.A. who by his order dated 13.6.1997 (Annexure-8) dismissed the revision.
Shri Sahoo, learned counsel for the petitioner, relying on a Bench decision of this Court in Prafulla Kumar Patnaik v. Regional Transport Authority. 68 1989 CLT 136 submitted that in the face of cancellation of certificate of fitness by the Inspector of Motor Vehicles, levy of motor vehicles tax is illegal. Counsel for the opposite parties, on the other hand, submitted that the ratio laid down by this Court in Prafulla Kumar Patnaik (supra) is not applicable. According to him, the liability to pay tax is not dependent upon the vehicle being covered by the certificate of fitness and tax has to be paid as long as the certificate of registration is in force. In this connection, he placed reliance on thejudgment of the Supreme Court in State of Karnataka Vs. K. Gopalakrishna Shenoy and Another, .
Before examining the rival contentions, it is necessary to examine as to what has been decided by this Court is Prafulla Kumar Patnaik (supra). In that case, during the period from 1.12.1987 to 15.7.1998 the vehicle had no valid certificate of fitness as it had expired on 30.11.1987. By construing Sub-section (1) of Section 38 of the Motor Vehicles Act, 1939, the Court held that as the vehicle had no valid certificate of fitness for the aforesaid period, the same could not have been validly registered. Accordingly, it could not be said to have been used or kept for use during the said period so as to attract levy of tax u/s 3 of the Orissa Motor Vehicles Taxation Act, 1975. The Regional Transport Authority preferred SLP No.5466 of 1990 against the aforesaid decision before the Supreme Court. Their Lordships by order dated 26.3.1990 while dismissing the Special Leave Petition, observed as follows:
"We have heard learned counsel for the petitioner. There is a delay of 80 days in filing the SLP which, in our opinion, has not been satisfactorily explained.
However, learned counsel submitted that the decision under appeal is of some importance to the petitioner as the principle laid down in regard to the exemption from taxation of the vehicle by reason alone of non-use operates in future cases as both an unsound and difficult precedent. Learned counsel referred to the observations at the end of para-6 of the judgment under appeal and urged that the proposition stated therein is erroneous. This submission is perhaps, not without merit, but petitioner''s apprehension as to the effect of this order in other cases could be allayed by confining the judgment under appeal to the facts of the case. With these observations, SLP is dismissed."
In view of the aforesaid observation of the Supreme Court, it has to be held that Prafulla Kumar Patnaik''s case (supra) has no precedential value.
Section 3 of the Motor Vehicles Taxation Act, 1975 deals with levy of tax. Sub-section(1) thereof lays down that subject to the other provisions contained in the Act, there shall be levied on every motor vehicle used or kept for use within the State a tax at the rates specified in the schedule of the Act. The Explanation occurring in Section 3 has direct bearing on the question raised. We may, therefore, extract the same.
"Explanation - An owner who keeps a transport vehicle for which the certificate of fitness and the certificate of registration are valid, or an owner who keeps any other motor vehicle, of which the certificate of registration is valid, shall, for the purposes of this Act, be presumed to keep such vehicle for use :
Provided that if the taxing officer finds a motor vehicle having used on any day during the period for which the registration certificate of a vehicle has been suspended or cancelled under the relevant provisions of the Motor Vehicles Act, such vehicle shall be deemed to have been kept for use the whole period without payment of tax.
Section 3-A deals with levy of additional tax which provides that there shall be levied on every public service vehicle and goods carriage used or kept for use within the State, an additional tax at a rate specified in the schedule.
It may be seen from the above, that Section 3 is the charging provision which provides that on every motor vehicle used or kept for use, a tax shall be levied at the rates prescribed in the schedule. Explanation to Section 3 further lays down that an owner who keeps a transport vehicle for which the certificate of fitness and the certificate of registration are valid shall be presumed to keep such vehicle for use. A bare reading of the explanation extracted above would show that in order to raise a presumption of ''use'' of the vehicle, the certificate of fitness and the certificate of registration must be valid. If either of them is found absent, no presumption of use of the vehicle can be raised against the owner of the transport vehicle. At this stage, we may refer to the judgment of the Supreme Court in K. Gopalkrishna Shenoy (supra). In that case, the scope of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957 came up for consideration. Sub-section (1) thereof laid down that a tax at the rates specified in part A of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of Mysore. The explanation contained in Section 3 of the Mysore Act was differently worded from that of the Orissa Act. We may, therefore, profitably extract the same.
"Explanation :- A motor vehicle of which the certificate of registration is current shall, for the purpose of this Act, be deemed to be a vehicle suitable for use on roads."
The distinguishing feature in Mysore Act is that if the certificate of registration in respect of a motor vehicle is valid, it shall be presumed to be a vehicle suitable for use on the roads. On the other hand, under the Orissa Act both the pre-conditions are required to be satisfied, namely, validity of certificate of fitness as well as validity of certificate of registration. If either of them is absent, the vehicle cannot be presumed to have been kept for use.
For the, reasons aforesaid, the ratio of the judgment of the Supreme Court in Shenoy''s case (supra) is not applicable to the facts and circumstances of the present case.
Admittedly the petitioner''s certificate of fitness has been cancelled by the Inspector of Motor Vehicles on 24.1.1991. Therefore, in absence of any evidence of revival of certificate of fitness in respect of the vehicle in question, the impugned demand for the period cannot be sustained in law.
In the result, the impugned demands at Annexures-2 and 6 and the revisional order at Annexure 8 are hereby quashed.
The writ petition is allowed.
P.K. Mishra, J.
I agree.
Writ petition allowed.