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2001 DIGILAW 608 (AP)

Lloyds Finance Ltd. , Bombay v. Dy. Commercial Tax Officer, Gopalapatnam,visakhapatnam

2001-06-20

S.ANANDA REDDY, S.R.NAYAK

body2001
S. R. NAYAK, J. ( 1 ) THE petitioner-Company is a non-banking financial company carrying on business of non-banking transactions such as hire purchase, lease, bills, discounting etc. The 2nd respondent is a customer of the petitioner-Company which entered into Hire Purchase Agreement with the petitioner-Company under which the 2nd respondent agreed to take on hire purchase a Swaraj Mazada LMV. The vehicle is registered as AP 31v 1107. Under the terms of the hire purchase agreement dated 23-9-1998, the 2nd respondent agreed to pay monthly hire charges at Rs. 10,7007- per month for 30 months. According to the petitioner, the 2nd respondent had paid only 10 instalments and failed to make payment of the balance instalments. ( 2 ) THE 2nd respondent is an assesses on the rolls of the Commercial Tax Officer, Dwarakanagar, Visakhaptanam. The 2nd respondent fell an arrears of Sales Tax of Rs. 7,37,610/- for the assessment years 1991-92 to 1993-94 under the A. P. G. S. T. Act, and C. S. T. Act. According to the 1st respondent every effort made by the department to recover the tax from the 2nd respondent went in vain and as a last resort to recover the tax from the 2nd respondent, the vehicle Swaraj Mazada was attached under the provisions of A. P. Revenue Recovery Act read with Section 17-C of the A. P. G. S. T. Act. ( 3 ) IT appears from the counter-affidavit filed by the 1st respondent that against the attachment of their vehicle on an earlier occasion the 2nd respondent filed W. P. No. 36262 of 1998 in this Court. It is pertinent to note that in the affidavit filed in support of that writ petition the 2nd respondent did not deny that he was the owner of the vehicle at the relevant point of time. The said writ petition was contested by the 1st respondent by filing a counter-affidavit and this Court by order dated 15-4-1999 dismissed the said writ petition confirming the action of attachment of the vehicle. ( 4 ) WHEN the matters stood thus, the present writ petition is filed by the petitioner for mandamus or any other appropriate writ, order or direction directing the respondents to release the vehicle bearing Reg. ( 4 ) WHEN the matters stood thus, the present writ petition is filed by the petitioner for mandamus or any other appropriate writ, order or direction directing the respondents to release the vehicle bearing Reg. No. AP 31v 1107 (Swaraj Mazda make LMV) to the petitioner and to handover the same to the petitioner and pass such other order or orders as this Hon ble Court may deem fit in the circumstances of the case. This relief is sought by contending that the attachment of the Swaraj Mazda vehicle by the Deputy Commercial Tax Officer, Gopalapatnam, Visakhapatnam, is illegal inasmuch as the ownership of the vehicle was not transferred from the petitioner to the 2nd respondent under the hire purchase agreement and it could be transferred on payment of the last instalment. It is pertinent to notice that according to Explanation I appended to Section 2 (n) of the A. P. G. S. T. Act, regarding definition of sale , a delivery of goods on hire purchase or any other system of payment of instalment shall notwithstanding the fact that the seller retains title on the goods as security for payment of price, be deemed to be a sale. In view of this explanation, it should be held that there is transfer of property from the petitioner to the 2nd respondent by way of sale and, therefore, the 2nd respondent is the absolute owner of Swaraj Mazda vehicle and, therefore, the attachment is perfectly valid. Even assuming that the 2nd respondent in terms of the hire purchase agreement did not pay the instalments, that fact itself would not alter the situation having due regard to Explanation I appended to Section 2 (n) of A. P. G. S. T. Act. ( 5 ) BEFORE concluding a decision cited by the learned Counsel for the petitioner before us be noted. The learned Counsel placed reliance on the judgment of a learned single Judge of this Court in Asia Pacific Investments Trusts Limited v. Assistant Commissioner of Excise and Prohibition and others, 1996 (4) ALD 293 . The said judgment will no way advance the case of the petitioner, for nothing is placed before us to show that the petitioner is the owner of the subject motor vehicle. The said judgment will no way advance the case of the petitioner, for nothing is placed before us to show that the petitioner is the owner of the subject motor vehicle. Even in the Registration Certificate produced at page No. 10 of the material papers, nowhere the name of the petitioner is mentioned against the column name of the registered owner . Only the name of the 2nd respondent is mentioned against the said column. ( 6 ) IN the result and for the foregoing reasons we do not find any merit in this writ petition and it is accordingly dismissed with no order as to costs.