Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 565 (KER)

P. A. Rasheed v. District Collector, Ernakulam

2013-07-08

BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN

body2013
Judgment : Thottathil B. Radhakrishnan, J. 1. The appellant, a registered owner of a contract carriage, faced revenue recovery proceedings on account of non-payment of tax due under the provisions of the Kerala Motor Vehicle Taxation Act, 1976, and the Rules. He then took the stand that he had filed G-forms for three different quarters, and accordingly, he filed an appeal before the jurisdictional Deputy Transport Commissioner. That authority called for and perused the records. It also heard the versions of the appellant and the department. It, categorically, found on the basis of the records, that G-forms for those periods were not in the file. This was expressly stated in the order issued by the appellate authority on 09.11.2006. wherein it was also noted that the application for tax exemption from 01.04.2005 to 31.06.2006 is still pending with the joint RTO, Irinjalakkuda. 2. The Deputy Transport Commissioner’s order was carried in revision, pointedly, pleading that acknowledgement were issued for filing of G-forms. This we see in paragraph No.6 and ground No.E of the revision memorandum dated 19.01.2007 filed by the appellant before the Transport Commissioner. Strangely, the appellant did not produce the original acknowledgements or authenticated copies thereof even before that revisional authority, in spite of the fact that the sole issue generated for consideration was as to whether he had filed the G-forms and whether the authority concerned had acknowledged receipt of the G-forms. The revisional authority dismissed the revision on 06.08.2007. 3. It was only by 17.03.2008, that the appellant filed the writ petition, from which this appeal arises. Even in the writ petition, he did not produce the acknowledgments regarding the filing of the G-forms. The department filed counter affidavit through the 4th respondent, the joint RTO, stating, among other things, that the so-called G-forms were not submitted in the office as per the records. It was also contended that the signatures as shown affixed by the then Public Relation Officers of that office as proof of having received the G-forms mentioned in Exts.P1 to P6 are fake and it is clear that they are purposefully fabricated for the purpose of misguiding the court. No reply affidavit was filed by the appellant to the aforesaid counter affidavit dated 19.07.2008. 4. No reply affidavit was filed by the appellant to the aforesaid counter affidavit dated 19.07.2008. 4. The fact of the matter remains that even before the revisional authority, the appellant did not care to show any legal evidence regarding the filing of the G-forms. Section 5 of the KMVT Act and Rule 10 of the Rules provide for G-form. The statutory form itself prescribes for an acknowledgment. Therefore, it is sine quo non that a person, who wants to assert that G-form was filed, has necessarily to have the acknowledgment to evidence, in case of any dispute, as to the filing of the G-form. 5. Under the aforesaid circumstances, notwithstanding the fact that the learned single Judge had criticized the non-filing of the reply affidavit in the writ proceedings, we do not find that even if a reply affidavit was filed, that would have improved the case in favour of the appealing writ petitioner. 6. Having seen the facts to the aforesaid effect, we find no way to interfere with the impugned decision. The writ appeal fails. In the result, this appeal is dismissed, however, clarifying that this judgment and the judgment of the learned single Judge will not stand in the way of the appellant enjoying any benefit, if any, due to him on the basis of the tax exemption application noted by the appellate authority in the 5th paragraph of its order dated 09.11.2006. Obviously, that can be only by way of refund and not by holding back the impugned recovery proceedings. At this point of time, the learned counsel for the appellant sought a smaller relief that his client be permitted to remit the balance outstanding in installments. Having bestowed our anxious consideration to the facts of the case and having heard the learned counsel for the appellant and the Revenue in that regard, it is ordered that the appellant will be permitted to remit the remaining amounts, including accruals, in four equal monthly installments on or before the last working day of every month, commencing from July, 2013. If there is default in remitting any of the installments granted hereby, this facility will stand recalled automatically, and the impugned distress action shall follow immediately.