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Rajasthan High Court · body

2005 DIGILAW 2593 (RAJ)

Hari Charan Agarwal v. State of Rajasthanc

2005-09-28

PREM SHANKAR ASOPA, Y.R.MEENA

body2005
Judgment 1. Since, in all the appeals, common issue has been raised, therefore, by this common order, they are being decided. 2. In this case, all the writ petitions have been dismissed on the ground that the petitioner has an alternate remedy by way of appeal before the competent Authority under Section 14 of the Rajasthan Motor Vehicles Taxation Act, 1951 (hereinafter referred to be “Act of 1951”). 3. In reply to the writ petition, it is specifically averred that alternate remedy is available with the petitioner. Relevant part of reply reads as under:-“4. That in the contents of Para No. 4 are replied in the terms that the total route available to the petitioner is 190 Kms, out of which major portion of the route i.e., 144 Kms. i.e., The route Jaipur to Gudhachandraji via Badwa, Dausa and Bhandarej Mod is of “A” class nature. Only 56 Kms of the route is not “A” class route, therefore, it can be termed as “B” class or “C” class route. The answering respondents is submitting herewith a copy of circulation note dated 110.1997 pertaining to the route of the petitioner. It has been specifically shown as 144 Kms route is perfectly “A” class route. The circulation note is being filed herewith marked as Annexure R/1. 5. That the contents of Para No. 5 are denied. It is denied that the route in question is “C” class route in nature. The answering respondents has already submitted that major portion of the route i.e., 144 out of 192 Kms is totally well constructed route, therefore, it can be termed as “A” class route. Rest of the route i.e., 56 Kms can be termed as “B” class or “C” route. It may be mentioned that the nature of the route is decided upon its motorability. Apart from it, the Rajasthan Motor Vehicles Rules explains about the category of routes. Rule 5.5 (3) defined “A”, “B” and “C” class routes. The route in question is of “A” class route. It may be mentioned that the petitioner is entitled for payment of tax as he is plying his vehicles on “A” class route. Apart from it, the Rajasthan Motor Vehicles Rules explains about the category of routes. Rule 5.5 (3) defined “A”, “B” and “C” class routes. The route in question is of “A” class route. It may be mentioned that the petitioner is entitled for payment of tax as he is plying his vehicles on “A” class route. It may also be mentioned that the petitioner was incorrectly paying tax for “C” class routes and, therefore, only the audit party raised an objection that the petitioner was paying less tax as all routes in Karauli District are “A” class except small portion route from Gangapur to Nadoti. The audit party has, therefore, rightly found that the petitioner paying less tax then required. 6. That in the contents of Para No. 6 are not admitted in the manner as averred by the petitioner. The contention of the petitioner that the tax paid by him for “C” class route was verified by the Department is denied. It may be mentioned that the verification was made in a book which is in form of MTC (IV). It may be mentioned that a notification was issued under Rule 15 of the Rajasthan Motor Vehicle Taxation Rules on 23.02.1998 wherein it was provided that in case of transport vehicle paying tax monthly when the tax or additional tax has been paid the Taxation Officer shall make entry of payment of tax in the token in the form of MTC (IV) which would be in shape of book already issued to tax payer at the time of first declaration. The entry made by the department authorities was to the effect that the petitioner has deposited the tax and, therefore, by merely entering the fact of deposition of tax in form of MTC (IV) does not mean that the Taxation Officer has issued a certificate to the petitioner that no tax was outstanding against him. It may be mentioned that the book is issued at the time of first declaration and entry of payment of tax does not prove that the tax has been rightly paid. Apart from it, the petitioner himself had knowledge that the route on which he is plying his vehicle was “A” class, and, therefore, only the petitioner submitted his returns to the Taxation Officer as required under Rule 6 of the Rajasthan Motor Vehicle Taxation Rules, 1951. Apart from it, the petitioner himself had knowledge that the route on which he is plying his vehicle was “A” class, and, therefore, only the petitioner submitted his returns to the Taxation Officer as required under Rule 6 of the Rajasthan Motor Vehicle Taxation Rules, 1951. The copies of returns submitted by the petitioner himself on 010.1998 is being filed herewith marked as Annexure R-2. The aforesaid declaration were signed by the petitioner himself wherein the petitioner had himself had mentioned that the route of 192 Kms on which he was plying his veghicle was “A” class route. It may be mentioned that the petitioner has himself declared that the route on which the vehicle was being plied was “A” class and, therefore, it does not lies in the mouth of the petitioner to aver that the route was in fact “C” class route. 7. That the contents of Para No. 7 are denied. It is denied that the petitioner had submitted an application in the office of the answering respondents seeking benefit of exemption under Rule 4 D of the Rajasthan Motor Vehicles Rules, 1951. Such an exemption was not available to the petitioner. It may be mentioned that the State Government had issued a Notification dated 27.04.1998 wherein it was provided that for grant of exemption in respect to “C” class route the permit holders of stage carriage permits would make an application to the State Government till 30.06.1998 and if no such application is made before the prescribed date then the tax would be charged taken the route as “A” class route. It was also provided in the circular that if an application is made then a survey would be conducted in order to make physical verification of the route by the transport inspectors or by the DTO and it if is found after the survey that the route is “C” class route then only exemption as available under Rule 43 of the Motor Vehicles Taxation Rules would be granted. It may also be mentioned that Rule 43 of the Rajasthan Motor Vehicles Taxation Rules, 1951 provides that every Taxation Officer before granting the rebate in tax in respect of “C” class routes would issue a certificate to the effect that the routes has been inspected by him personally and that he satisfied that the route comes in the category of “C” class route only. The petitioner was not entitled to any sort of benefit under the notification, as firstlyhe did not apply to the Taxation Officer before the prescribed date i.e., 30.06.1998, therefore, survey could not be conducted and certificate as required by Rule 43 of the Motor Vehicles Taxation Rules, 1951 could not be issued. In such circumstances the petitioner is not entitled for benefit provided under the notification. It may also be mentioned that audit has rightly pointed out that the petitioner was paying less tax as no route in Karauli District was “C” class. 8. That in the contents of Para No. 8 are not disputed. 9. That in the contents of Para No. 9 are denied. The petitioner himself has knowledge that the route on which he is plying his vehicle was “A” class even then petitioner has paid less tax. The amount as pointed out by the audit party is outstanding against the petitioner. 10. That the contents of Para No. 10 are denied. The petitioner has paid less tax, therefore, he is liable to pay the tax. 11. That the contents of Para No. 11 are denied. It is denied that the petitioner is liable to pay tax for “C” class routes only. As a matter of fact the petitioner plying his vehicle on “A” class, therefore, he is liable to pay tax as the routes on which he is plying his vehicle are of “A” class route. 12.That the contents of Para No. 12 are denied. 13. That the contents of Para No. 13 are replied in the terms that the petitioner has no cause of action what so ever to file the present writ petition. The writ petition is absolutely premature. It may be mentioned that the Taxation Officer has not verified the declaration submitted by the petitioner in accordance with the Rule 8 of the Rajasthan Motor Vehicles Taxation Act. The computation of tax in accordance with the Notification dated 23.02.1998 has not been made and, therefore, the writ petition is absolutely pre-mature. No order has been passed by the Taxation Officer. The Taxation Officer has also not issued MTO notice to the petitioner and the petitioner has only challenged the recommendation of the audit party which has been forward to the Taxation Officer. The answering respondents has not issued any demand notice whatsoever to the petitioner. No order has been passed by the Taxation Officer. The Taxation Officer has also not issued MTO notice to the petitioner and the petitioner has only challenged the recommendation of the audit party which has been forward to the Taxation Officer. The answering respondents has not issued any demand notice whatsoever to the petitioner. However, the petitioner is entitled to pay the amount which has been pointed out by the audit party. The writ petition is absolutely pre-mature. It may also be mentioned that if any order is passed by the Taxation Officer then the petitioner has liberty of filing an appeal under Section 14 of the Rajasthan Motor Vehicles Taxation Act before the competent authority. The challenge to the audit objection is absolutely baseless and the writ petition deserves to be dismissed on this ground alone.” 4. In view of the reply, we allow the appellant to file appeal before the competent Authority under Section 14 of the Act of 1951, and consequently, the competent Authority is directed to decide the appeal on merits after considering all the objections raised by appellant, as per law within a period of six months from the date of filing the same. However, as the appellant prefers an appeal and limitation is expired, even then same may be entertained and delay may be condoned.