C. SHIVAPPA, J. ( 1 ) THE Chief Judicial Magistrate First Class, III Court, Managalore convicted the accused and sentenced him for an offence under Section 12 (l) (a) of the karnataka Motor Vehicles Taxation Act ('the Act' in short) for non-payment of tax for certain periods. Against the conviction and sentence passed by the learned Magistrate, three separate appeals were preferred. The learned Sessions judge passed a common order setting aside the conviction and sentence. It is this order of acquittal passed by the Sessions Judge that is under challenge in these appeals. ( 2 ) THE short question that arises in these appeals is:"whether the accused person is liable to pay tax for the period mentioned in all these three cases?" ( 3 ) THE learned Magistrate took the view in para-6 of his order that the accused has paid tax on 11-4-1979. Therefore, it is sufficient to hold that the accused was in actual possession of the vehicle. It is here the learned Magistrate has gone wrong. It is not the possession that fixes liability to pay the tax. Whether the vehicle was put to use on road and whether the vehicle had the fitness certificate are circumstances which require consideration. ( 4 ) THE learned Sessions Judge in para-8 of his judgment considered the decision of this court in B. V. Subramanya Setty v Senior Regional Transport officer, Mysore and Others, ILR 1984 Karnataka 85. Section 3 (1) of the Act contemplates that the rates specified in Part-A of the Schedule shall be levied on all motor vehicles suitable for use on roads. But, the explanation attached to this section reads thus:"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 explanation to Section 3 of the Act contemplates legal fiction that the vehicle shall be deemed to be roadworthy, if the registration certificate is crrent. But this explanation was struck down by this court as ultra vires in the case reported in ILR 1984 Karnataka 85. "the explanation to Section 3 of the Act contemplates legal fiction that the vehicle shall be deemed to be roadworthy, if the registration certificate is crrent. But this explanation was struck down by this court as ultra vires in the case reported in ILR 1984 Karnataka 85. This court has taken the view:"the legal fiction under the explanation to sub-section (1) of Section 3 of the Karnataka Motor Vehicles Taxation Act, 1957, that a vehicle shall be deemed to be suitable for use on road, does not arise where the registration certificate in respect of a transport vehicle is not current on account of the certificate of fitness of that vehicle not being in force, either on account of its expiry or cancellation. But even where that explanation is inapplicable the transport vehicle is liable to tax under the Taxation Act if it is established that it was suitable for use on roads during the relevant period. "the legislature added a note to Section 3 of the Act. That note was again challenged before this court and the matter was considered again by this court in road Transport Corporation (P) Ltd. , Bangalore and Others v The Asst. Regional transport Officer, Bangalore and Others, 1984 (2) Kar, L. J. 283: AIR 1984 Kant. 174 and this court took the view that the note to Section 3 of the Act was invalid and the law declared by this court in B. V. Subramanya Setty's case continues to be valid (see AIR 1984 Karnataka 174 at 181, para 41 ). This court took the view that even when a registration certificate of a motor vehicle was not current, it was open to the revenue to prove that the vehicle was suitable for use on roads and was accordingly used on roads for any period and recover taxes on such a vehicle for such period. ( 5 ) IN these cases there is no evidence that the vehicle in question was actually used on roads. The witnesses examined in these cases have given evidence that they have not actually seen the particular vehicle being used on roads during the relevant period. ( 5 ) IN these cases there is no evidence that the vehicle in question was actually used on roads. The witnesses examined in these cases have given evidence that they have not actually seen the particular vehicle being used on roads during the relevant period. In the absence of direct evidence of user of the vehicle on roads and admittedly when the fitness certificate was not current during the relevant period the vehicle owner is not liable to pay tax and hence no offence was committed either in the case of non-payment or belated payment. The learned sessions Judge was justified in acquitting the accused person. ( 6 ) FOR reasons aforesaid, we find that there is no ground to interfere with the order of the Sessions Judge. Consequently the appeals fail and are dismissed. --- *** --- .