GOVINDA BHAT, J. ( 1 ) THIS petition under Art. 226 of the Constitution of India is directed against the order of the first respondent made in Tax Appeal No. 18. /1960 on his file preferred against the order of the second respondent made on 11-5-1960 under the Motor Vehicles Taxation Act 1957 (Mysore Act 35 of 1957) hereinafter referred to as 'the Act'. ( 2 ) THE petitioner is the registeed owner of a motor vehicle No. MYF 2615 which he was operating as a stage carriage on the route between Tayaloor and Chickballapur via Mulbagal under a permit issued by competent authority under the Motor Vehicles Act. S. 3 read with S. 4 of the Act makes the registered owner or person having possession or control of the motor vehicle kept in the State, liable to pay tax at the rates specified in Part A of the Schedule thereto for a quarter, half year or year at his choice. The rate of tax varies with the class of the vehicle. The petitioner paid tax on his vehicle at the rates applicable to motor vehicles plying for hire and used for the transport of passengers and in respect of which permits have been issued under the Motor Vehicles Act, as specified in item 4 of Part A of the Schedule, up to the end of the quarter ended on 30-6-1959 but he failed to pay the tax for the quarters ended 30-9-1959 and 31-12-1959. On 5-2-1960 he paid tax for the months of February and March 1960. On 11-5-1960, he was called upon to pay a sum of Rs. 1,909 assessed as tax arrears for the period from 1-7-1959 to 5-2-1960 and a further sum of Rs. 3,735 levied as penalty under S. 12, by a notice of demand issued by the second respondent. On 5-2-1960 he paid tax for the months of February and March 1960. On 11-5-1960, he was called upon to pay a sum of Rs. 1,909 assessed as tax arrears for the period from 1-7-1959 to 5-2-1960 and a further sum of Rs. 3,735 levied as penalty under S. 12, by a notice of demand issued by the second respondent. Against the said order, the petitioner preferred tax Appeal No. 18 of 1960 before the first respondent contending that the imposition of penalty, as also the demand for tax, are illegal on the grounds inter alia, that owing to mechanical trouble he had kept his vehicle not for use but for repairs at Madanapalli in Andhra Pradesh on 30-6-1959, that commencing from 1-7-1959 till 5-2-1960 he did not use the vehicle on any road in the Mysore State, that the fitness certificate in respect of the said vehicle had expired on 30-6-1959 and was renewed only on 5-2-1960 and that on 1-7-1959 he had surrendered the Registration Certificate to the 2nd respondent after intimating his intention not to operate the vehicle. In support of the facts on which he relied, he filed an affidavit along with his memorandum of appeal. The first respondent did not enquire into the facts relied on by the petitioner in support of his contention nor deal with them. He held the petitioner liable to pay tax on the sole ground that the certificate of registration of his vehicle was current and the petitioner did not satisfy the conditions prescribed either for refund under Rule 23 or for grant of exemption under S. 16 Notification. However, he reduced the penalty to Rs. 1,500. Aggrieved by the said order, the petitioner has preferred the above writ petition and has urged the same grounds as were urged before the first respondent. ( 3 ) THE first question that arises for our consideration is whether the imposition of penalty under S. 12 of the Act by the second respondent is legal. ; In Chamundi Construction Co. v. State of Mysore, 1961 Mys. ( 3 ) THE first question that arises for our consideration is whether the imposition of penalty under S. 12 of the Act by the second respondent is legal. ; In Chamundi Construction Co. v. State of Mysore, 1961 Mys. L. J. 341, this Court held that, the penalty which can be imposed under Sec. 12 of the Act is really in the nature of a fine, that it is only after a person is tried and convicted that the fine may be imposed on him and that S. 12 does not confer any jurisdiction on the RTO. to impose the fine. In view of the said decision, it is not contended by the learned Government Pleader appearing for the respondent that the penalty imposed on the petitioner is legal. Following the said decision, we hold that the levy of penalty of the sum of Rs. 1,500 on the petitioner is without jurisdiction and therefore, liable to be quashed. ( 4 ) THE next question for our decision is whether the demand for tax made on the petitioner is illegal on the ground that he is not chargeable to tax for the reasons urged by him before the first respondent. The learned counsel for the petitioner did not seriously press his alternate ground that the petitioner was entitled to refund under S. 7 read with Rule 23 and therefore a nil demand should have been made under Rule 24. His main contention is that under the provisions of S. 3 of the Act, which is the charging section, the petitioner is not liable to tax. Motor Vehicles Taxation Acts in all the States of the Indian Union follow a uniform pattern. Entry 57 of list II of Schedule VII of the Constitution is the Legislative Entry conferring power on the States to levy the tax. As observed by the Supreme Court in Automobile Transport ltd. v. State of Rajasthan, AIR 1962 SC 1406 . Motor Vehicles Tax is a compensatory tax levied for the use of the roads. It is not a tax on ownership or possession of motor vehicles. The object of the Act. As observed by the Supreme Court in Automobile Transport ltd. v. State of Rajasthan, AIR 1962 SC 1406 . Motor Vehicles Tax is a compensatory tax levied for the use of the roads. It is not a tax on ownership or possession of motor vehicles. The object of the Act. is achieved by charging to tax all motor vehicles suitable for use on roads, kept in the State, the registered owner or person having possession or control being held liable to pay the tax in advance and then providing for grant of refund for non-user subject to prescribed conditions. S. 16 empowers the State Government by Notification to exempt or reduce the rate of tax in respect of any class of motor vehicles. Sub-sec. (1) of S. 3 which is the material Section reads thus:" (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, kept in the state of Mysore: provided that in the case of motor vehicles kept by a dealer in or manufacturer of, such vehicles for the purposes of trade, the tax shall only be levied and paid by such dealer or manufacturer on vehicles permitted to be used on roads in the manner prescribed by rules made under the Motor Vehicles Act, 1939. 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. " ( 5 ) THE charging section requires two conditions to be satisfied for the tax to be attracted. They are: (a) the vehicle is suitable for use on roads: (b) the vehicle is kept in the State of Mysore. The first relates to the condition of the vehicle, while the second relates to the act of the registered owner etc. The word 'kept' in the section does not mean merely having in one's possession or custody but means that the registered owner etc. , must keep it for use, that is with the intention of using it when wanted. Though the section does not state "kept for use" the word 'kept' in the context and the scheme of the Act must be taken to mean "kept for use". , must keep it for use, that is with the intention of using it when wanted. Though the section does not state "kept for use" the word 'kept' in the context and the scheme of the Act must be taken to mean "kept for use". Dealers and manufacturers of motor vehicles have possession of motor vehicles but they do not keep them for use and therefore, they are made not liable by the proviso to the section. The contention of the learned counsel for the petitioner is that both the conditions necessary to attract the tax under S. 3, are absent in the case of the petitioner. The learned Counsel urged that the fitness certificate of the vehicle having expired and not renewed and the vehicle in question being a tranaport vehicle it is deemed not to be validly registered for purposes of S. 22 of the Motor Vehicles Act by virtue of S. 38 of the said Act, and therefore, the certificate of registration should be deemed not current and when the certificate of registration is deemed non-current, the explanation to sub- sec. (1) of S. 3 is not attracted. According to the learned Counsel if the registration of the vehicle for the purposes of S. 22 of the Motor Vehicles act, is not valid, the vehicle is not suitable for use on roads. Learned counsel relied on certain decisions under the Motor Vehicles Act where it was held that where the fitness certificate of a transport vehicle is not current, it shall not be deemed to be validly registered for the purpose of s. 22 of the Motor Vehicles Act. S. 22 read with S. 38 of the Motor Vehicles act prohibits the driving of a transport vehicle unless the vehicle is not only registered but also has a current fitness certificate. This only means that there is a legal prohibition against the use of transport vehicles without a current fitness certificate. Sub-sec. (1) of S. 3 of the Act refers to the condition of the Motor Vehicle and not the legal requirements that have to be satisfied for plying under the Motor Vehicles Act. By the explanation to sub-sec. (1) of S. 3 the Legislature, for the purpose of the Act has provided that motor vehicles so long as their certificates of registration are current, shall be deemed suitable for use on roads. By the explanation to sub-sec. (1) of S. 3 the Legislature, for the purpose of the Act has provided that motor vehicles so long as their certificates of registration are current, shall be deemed suitable for use on roads. The legal fiction created by S. 38 of the Motor Vehicles Act is only for the purpose of S. 22 of that Act and cannot be extended to the Taxation Act. Therefore, we are not able to agree with the contention of the learned counsel that the petitioner's vehicle should be held unsuitable for use on roads. ( 6 ) IT is, however, not sufficient if the petitioner's vehicle is held suitable for use on roads. In order to render him liable he must be shown to have 'kept the vehicle for use on roads in the State of Mysore'. There is no finding by either of the respondents that the petitioner kept the vehicle for use in Mysore State during the relevant period. That question has to be decided on the facts of the case. The fact that the vehicle is a transport vehicle and its fitness certificate was not current and therefore there was a legal prohibition against the use of the vehicle on roads, that the petitioner had surrendered the certificate of registration on 1-7-1959 and obtained its return onlv on 5-2-1960, that the vehicle was left in a workshop for carrying out the repairs, are all relevant considerations for arriving at a finding on the issue as to whether the petitioner kept the vehicle for use with the intention of using it in Mysore State when wanted. Since there is no finding by the first respondent on this material question without which finding there could be no jurisdiction to levy tax under the act, the order of the first respondent has to be set aside and he should be directed to decide the appeal after giving the petitioner an opportunity to prove his case. ( 7 ) IN the result, we quash the order of the first respondent made in Tax appeal No. 18 of 1960 on his file and direct him to dispose of the appeal preferred by the petitioner against the demand for arrears of tax in accordance with law and in the light of the observations contained in this order. There will be no order as to costs. --- *** --- .