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2001 DIGILAW 293 (KAR)

K. MUKUNDA BHAT v. STATE OF KARNATAKA

2001-03-28

K.SREEDHAR RAO

body2001
K. SREEDHAR RAO, J. ( 1 ) ALL these criminal petitions arising out of distinct liability in respect of the payment of motor vehicle taxes towards the omnibus bearing registration No. 8686. The petitioner is the owner of the bus. For the periods 1-5-1989 to 1-5-1993, 17 quarterly taxes were not paid. The regional Transport Officer launched prosecution against the petitioner herein in C. C. Nos. 2699 and 2753 of 1993 for committing the offence punishable under Section 12 (l) (a) read with Section 3 (1) of the Karnataka motor Vehicles Taxation Act, 1957. The total tax liability due was in a sum of Rs. 48,931/ -. The petitioner before the Trial Court contended that in respect of C. C. Nos. 2699 to 2705 of 1993 quarterly taxes have been paid at the rate of Rs. 640/- for the period 1-5-1989 to 1-11-1990 for the balance of period admittedly no taxes are paid. However, on 3-1-1991 petitioner had submitted an application to the R. T. O. , udupi for the cancellation of the Registration Certificate of the bus in question stating that the bus was involved in an accident and it has become irreparable and that the original documents like registration certificate, fitness certificate etc. , have been seized by the R. T. O. , Nagarkoil. To substantiate the seizure of the document the photocopy of the check report evidencing the seizure of the document by the R. T. O. , nagarkoil is marked at Ex. P. 6 (a ). In the light of the material it was strenuously contended by the petitioner before the Trial Court that he is not obliged to pay the taxes under law since the bus was not put into use. The Trial Court rejected the defence version, convicted the accused and levied fine equivalent to quarterly taxes for each of the offence. ( 2 ) BEING aggrieved by the conviction and sentence, an appeal was filed before the Principal Sessions Judge, Mangalore in Cri. A. Nos. 174 and 176 of 1994. The learned Sessions Judge remanded the case to the trial Court holding that the R. T. O. , Udupi should have interacted with the R. T. O. , Nagarkoil to ascertain the correctness of the version of the petitioner. Cri. A. Nos. A. Nos. 174 and 176 of 1994. The learned Sessions Judge remanded the case to the trial Court holding that the R. T. O. , Udupi should have interacted with the R. T. O. , Nagarkoil to ascertain the correctness of the version of the petitioner. Cri. A. Nos. 174 and 176 of 1994 were dismissed holding that the arrears of tax is for the period earlier to the application made before r. T. O. , Udupi for cancellation of the Registration Certificate. Being aggrieved by the order of remand, the present revision petitions are filed. ( 3 ) AFTER hearing the Counsel for the petitioner at length and the state Public Prosecutor the fact that the bus in question was involved in an accident and was irreparably damaged is fairly established. The petitioner made an application to the R. T. O. , Udupi on 3-1-1991 for cancellation of the registration Certificate to avoid the payment of further tax. Ex. P. 6 (a), the photostat copy of the check report issued by the R. T. O. , nagarkoil indicating the seizure of the original Registration Certificate and other documents relating to the vehicle was also produced. Ex. P. 6 (a) although a photostat copy would serve as secondary evidence. In view of such document, R. T. O. , Udupi could have contacted with the r. T. O. , Nagarlkoil to find out the veracity of the version made out by the petitioner. To overlook the defence the version of the petitioner by insisting that only original of the check report should have been produced be fore the R. T. O. , Udupi, is to technical argument. As aforesaid, nothing prevented the R. T. O. , Udupi too have verified the correctness of documents by interacting with the R. T. O. , Nagarkoil. To overlook the defence the version of the petitioner by insisting that only original of the check report should have been produced be fore the R. T. O. , Udupi, is to technical argument. As aforesaid, nothing prevented the R. T. O. , Udupi too have verified the correctness of documents by interacting with the R. T. O. , Nagarkoil. The ruling of the Su- preme Court in State of Karnatdka v K. Gopalakrishna Shenoy and others1, wherein it is held thus:"the scheme of the Taxation Act is such that the tax due on a motor vehicle has got to be paid in terms of Section 3 at the prescribed rate and in advance and the liability to pay tax continues as long as the Certificate of Registration is current but if it so happens that in spite of the Certificate of Registration being current, the vehicle had not actually been put to use for the whole of the period or a continuous part thereof, not being less than one calendar month, the person paying the tax should apply to the prescribed Authority and obtain a refund of the tax for the appropriate period after satisfying the Authorities about the truth and genuineness of his claim. Sections 3 and 4 are absolute in their terms and the liability to pay the tax in advance is not dependent upon the vehicle being covered by a Certificate of Fitness or not. Even if the vehicle was not in a roadworthy condition and could not be put to use on the roads without the necessary repairs being carried out, the owner or person having possession or control of a vehicle is enjoined to pay the tax on the vehicle and then seek a refund. Perhaps in exceptional cases where the vehicle has met with a major accident or where it is in need of such extensive repairs that it would be impossible to put the vehicle to use or where the Transport Authorities themselves prohibit the use of the vehicle due to its defective condition and cancel the Certificate of fitness or suspend it, the person concerned may surrender the Certificate of Registration and other documents like permit etc. , and seek the permission of the Transport Authorities to waive the payment of tax on the ground that no proof of non-user was necessary and as such payment of tax on the one hand and an automatic application for refund on the other would be a needless ritualistic formality and if the permission sought for is granted, he need not pay the tax. In all other cases the only course left open is for the person concerned, to pay the tax in advance and thereafter apply to the Authorities and obtain refund of tax after proving that the vehicle was not fit for use on the roads and had in fact not been made use of. The principle underlying the Taxation Act is that every motor vehicle issued a Certificate of Registration is to be deemed a potential user of the roads all through the time the certificate of Registration is current and therefore liable to pay tax under Section 3 (1) read with Section 4. If, however, the vehicle had not made use of the roads because it could not be put on the roads due to repairs, even though the Certificate of Registration was current, the owner or person concerned has to seek for and obtain refund of the tax paid in advance after satisfying the authorities about the truth of his claim. It is not for the Transport authorities to justify the demand for tax by proving that the vehicle is in a fit condition and can be put to use on the roads or that it had plied on the roads without payment of tax. It would be absolutely impossible for the State to keep monitoring all the vehicles and prove that each and every registered vehicle is in a fit condition and would be making use of the roads and is therefore, liable to pay tax. For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. For that reason, the State has made the payment of tax compulsory on every registered vehicle and that too in advance and has at the same time provided for the grant of refund of tax whenever the person paying the tax has not made use of the roads by plying the vehicle and substantiates his claim by proper proof. Any view to the contrary would defeat the purpose and intent of the Taxation Act and would also afford scope and opportunity for some of the persons liable to pay the tax to ply the vehicle unlawfully without payment of tax and later on justify their non-payment by setting up a plea that the vehicle was in repair for a continuous period of over a month or the whole of a quarter half year or year as they choose to claim". ( 4 ) THE said ruling permits an exceptional situation, obviously when it is shown that the vehicle met with an accident rendering totally useless for plying, to insist the person concerned to pay the tax in advance and thereafter to surrender the certificate of registration and other documents with an application for refund of the tax for the period of non-user is only a redundant formality. In such situation, the R. T. O. concerned has jurisdiction to exempt the payment of advance of tax, when it is convincingly shown that the vehicle was not in a plying condition. In the instant case, sufficient material by Ex. P. 6 is produced to show that the original registration certificate and other documents were in the custody of the R. T. O. , Nagarkoil. It was also shown that the vehicle which met with an accident was in irreparable condition. In such situation, it was appropriate on the part of the R. T. O. , Udupi to have found out from the r. T. O. , Nagarkoil the correctness of the version stated by the petitioner. The R. T. O. , Udupi being a public servant, should have discharged his duties conscientiously and diligently without harping on the technicalities. In this regard, there is a failure on the part of the R. T. O. , Udupi in not exercising his discretional powers in a proper and expected manner. The R. T. O. , Udupi being a public servant, should have discharged his duties conscientiously and diligently without harping on the technicalities. In this regard, there is a failure on the part of the R. T. O. , Udupi in not exercising his discretional powers in a proper and expected manner. Tho documents in question are said to have been seized about 10 and 11 years ago from now and it would be totally impossible to hope the existence and availability of the originals of the documents in the possession of the R. T. O. , Nagarkoil. Therefore, in view of the probable dissipation of the primary evidence, whatever the secondary evidence produced by way of Ex. P. 6 (a), has to be given due credence and in that view of the matter the petitioner has successfully discharged the burden by showing that the vehicle was not in a plying condition. Therefore, to insist the payment of tax and seek refund thereafter, as held by the Supreme Court, is a redundant formality. Therefore, any retrial in the matter is also not warranted. ( 5 ) ACCORDINGLY, the petitions are allowed and the proceedings are juashed. --- *** --- .