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Rajasthan High Court · body

2011 DIGILAW 2294 (RAJ)

Samarth Lifters Pvt. Ltd v. State of Rajasthan

2011-11-01

VINEET KOTHARI

body2011
JUDGMENT 1. - In the present batch of writ petitions, the petitioner assessees have challenged the impugned action of the respondent-District Transport Officer cum Taxation Officer of seizure of their cranes and payment of tax under the provisions of Section 4 of the Rajasthan Motor Vehicles Taxation Act, 1951 treating the said cranes as construction equipment vehicles. 2. There are two relevant Notifications which may be applicable to the motor vehicle in question and the relevant entries of the Notifications are reproduced hereunder:- 1. "Notification No. F.6(179)/Pari/Tax/Hqrs/95/l-L, Dated 27.3.2006 - In exercise of the powers conferred by clause (b) of sub-section (1) of Section 4 of the Rajasthan Motor Vehicles Taxation Act. 1951 (Act No. 11 of 1951), and in supersession of this department's Notification No. F6 (179) Pari/Tax/Hqrs/95/l-J Dated 30.10.2002 (as amended from time to time) the State Government hereby with immediate effect prescribes the rate of One Time Tax in case of non-transport vehicles as specified in Col. No. 2 of the table appended here at the rates specified against each in Col. No. 3, thereof:- S.No. Description of class of Motor vehicles One Time Tax 1. 2. 3. 4. 5. Vehicles fitted with equipments like rig generator or compressor, crane mounted vehicle. Fork Lift, Tow trucks, breakdown, van, recovery vehicles, Tower wagons, tree trimming vehicles or any other non-transport vehicles not covered under any category- (a) Purchased as a chassis 10.0% of cost of the chassis subject to a maximum of Rs. 1,50,000 (b) Purchased with a complete body 8.0% of the cost of vehicle subject to a maximum of Rs. 1,50,000 6. Construction Equipment Vehicle- (a) Purchased as a Chassis 7.5% of the cost of the chassis subject to a maximum of Rs. 1,50,000 (b) purchased with a complete body 6.0% of the cost of the vehicle subject to a maximum of Rs. 1,50,000 6. Construction Equipment Vehicle- (a) Purchased as a Chassis 7.5% of the cost of the chassis subject to a maximum of Rs. 1,50,000 (b) purchased with a complete body 6.0% of the cost of the vehicle subject to a maximum of Rs. 1,50,000 S. O. 399, Notification No. F.6(252)/Pari/Tax/Hqrs/05/4G-163, Dated 9.3.2007.- In exercise of the powers conferred by clause (c) and Clause (cc) of sub-section (1) of Section 4 of the Rajasthan Motor Vehicles Taxation Act, 1951 (Act No. II of 1951), and in supersession of this department's Notification No. F6(179) Pari/Tax/Hqrs/92/4F, Dated 24.3.2005, the State Government hereby with immediate effect prescribes the rate of tax in the case of different class of Transport vehicles plying on temporary permits and on construction equipment vehicles and on motor Vehicles or chasis of Motor Vehicles registered temporarily and passing through the State, specified in Col.No. 2 of the table appended here, at the rate specified against each in Col.No. 3, thereof- S.No. Description of class of Motor vehicles Rate of Tax 1. 2. Construction Equipment Vehicles of other States coming for temporary use in this State. Rs. 1,000/- per 1,000 kg. of ULW or part thereof for 30 days or part thereof. 3. Learned Counsel for the petitioners urged that since the motor vehicle in question was purchased and registered in the State of Gujarat and was brought within the State of Rajasthan for various industrial units for setting up windmills and mining industries, therefore, one time tax was rightly paid in respect of these motor vehicles upon the demand made by the respondent Department under the aforesaid Notification dated 27.3.2006, and now the respondent Assessing Authority cannot demand additional tax or difference of tax under the subsequent Notification dated 9.3.2007 treating them as Construction Equipment Vehicle and seizure of the vehicle for realising such difference of tax is bad in law. 4. On the other hand, Dr. Pratishtha Dave, learned counsel appearing for the Revenue urged that cranes of the petitioner assesses are certainly motor vehicles and since it is registered outside the State of Rajasthan and were brought for temporary use within the State of Rajasthan, it is covered by the subsequent Notification dated 9.3.2007 which impliedly supersedes the previous Notification dated 27.3.2006, so far as the construction equipment vehicles are concerned and, therefore, demand of tax from the petitioners assessees under the subsequent notification dated 9.3.2007 is justified. She also submitted that no adjudication process has yet taken place and no assessment order has also been passed by the Assessing Authority and, therefore, the writ petitions are premature and deserve to be dismissed. 5. Having heard the learned counsels, this Court is of the opinion that since no adjudication process or assessment order has yet been passed by the competent assessing authority in the present cases to decide the various questions as to applicability of Notification dated 27.3.2007 extracted above or whether the cranes in question owned and possessed by the petitioners are construction equipment vehicles or not and whether it will be covered by Entry Nos. 5 and 6 of Notification dated 27.3.2006 or Entry No. 2 of the Notification dated 9.3.2007 are the questions which are yet to be decided and these questions straightway cannot be decided in writ petition as they are mixed questions of facts and law, which deserve to be decided first by the authorities created under the Act, on the basis of relevant evidence. 6. Thought the action of the petitioners assessee by approaching this Court against the seizure of vehicles in question cannot be said to be premature but at the same time the question of demand of tax based upon the relevant Notifications is a mixed question of fact and law, which deserves to be determined by the Assessing Authority after giving due and reasonable opportunity of hearing to the assesseee. There are appellate forums also available under the provisions of Motor Vehicles Taxation Act, 1951 and, therefore, in the considered opinion of this Court, it would be premature to pronounce upon the tax-ability, nature of vehicle and application of either of these Notifications at this stage. 7. By the interim order of this Court, the vehicles in question have already been released by the respondent authority upon furnishing solvent security to the satisfaction of assessing authority. 8. 7. By the interim order of this Court, the vehicles in question have already been released by the respondent authority upon furnishing solvent security to the satisfaction of assessing authority. 8. Consequently, these writ petitioner are disposed of with the following directions to both the parties: (i) the respondent assessing authority, common for all the present petitioner-assessees, namely; District Transport Officer cum Taxation Officer, Jodhpur shall undertake the assessment procedure with respect to all these assessees and will issue a detailed show cause notice to the respective assesses raising therein the various points or issues on the basis of which the respondent authorities have demanded the tax on these motor vehicles under the subsequent Notification dated 9.3.2007. The assessments of all such assessees be consolidated and DTO, Jodhpur shall pass the assessment order as aforesaid. (ii) the petitioner assessees will be free to raise all objections and questions relating to tax-ability of these motor vehicles under the relevant two Notifications and support their contentions with relevant evidences which they may produce before the aforesaid assessing authority. (iii) the assessing authority is expected to pass detailed and speaking orders/assessment orders adjudicating the issues raised by the petitioners assessees in his assessment order, which may be passed preferably within a period of six months from today. The show cause notice may be issued by the respondent authority within a period of one month from today giving all the details as aforesaid. (iv) if the petitioner-assessees are aggrieved by the adjudication order, they will be free to approach the appellate authority under Section 14 of the Act by way of appeal, subject to compliance with the conditions of Section 14 of the Act. The appellate Authority is also expected to pass speaking order after giving due and reasonable opportunity of hearing to the petitioner-assessee. (v) it is only after such mixed questions of facts and law are decided appropriately by the authorities below, the petitioners assessees, if aggrieved, may take further suitable legal remedies before this Court. (vi) the interim order granted by this Court shall continue till the matters are decoded by the Assessing Authority, namely; the DTO, Jodhpur. 9. Writ petitions are accordingly disposed of. (vi) the interim order granted by this Court shall continue till the matters are decoded by the Assessing Authority, namely; the DTO, Jodhpur. 9. Writ petitions are accordingly disposed of. No costs.Schedule (i) S.B. Civil Writ Petition No. 106 76/2010 : Express Equipment Rental & Logistics P. Ltd.v. State & Ors (ii) S.B. Civil Writ Petition No. 9874/2011 : Maharashtra Erectors P. Ltd. v. State & Ors. (iii) S.B. Civil Writ Petition No. 5056/2011 : Sethia Erectors & Material Handlers Ltd. v. State & Ors. (iv) S.B. Civil Writ Petition No. 1169/2010 : Bajrang Lai Agarwal v. State & Ors. (v) S.B. Civil Writ Petition No. 8242/2010 : Express Equipment Rental & Logistics P. Ltd. v. State & Ors. (vi) S.B. Civil Writ Petition No. 2941/2011 : M/s. Premier Logistics v. State & Ors. Petition disposed of. *******