Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1579 (ALL)

AJAY KUMAR YADAV v. STATE OF U. P.

2018-07-19

RAJAN ROY

body2018
JUDGMENT Hon’ble Rajan Roy, J.—Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State. 2. This is a writ petition under Article 226 of the Constitution of India seeking the following reliefs : “i) To issue a writ, order or direction in the nature of ‘’CERTIORARI’ quashing the impugned order dated 1.9.2016, passed by the Opposite Party No. 2, in Appeal No. 15 of 2016, titled as Ajay Kumar Yadav v. Taxation/Registration Officer, Motor Vehicle Department, Faizabad and others and the order/Recovery Certificate dated 20.1.2016, issued by the Opposite Party No. 5 in respect of the vehicle No. UP-41T-3051 (Jeep/Taxi) and also the Recovery Citation dated 3.3.2016, issued by the Opposite Party No. 7, against the Petitioner and also commanding the Opposite Party No. 5 to release the papers of the vehicle No. UP-41T-3051 (Jeep/Taxi) in favour of the Petitioner without levying any tax or penalty. ii) To issue a writ, order or direction in the nature of ‘’MANDAMUS’ commanding the Opposite Party No. 5 to release the papers of the vehicle No. UP-41T-3051 (Jeep/Taxi) in favour of the Petitioner without levying any tax or penalty.” 3. The matter was heard on the earlier occasion and the following order was passed on 22.2.2018: “Heard. The question which falls for consideration before this Court is as to whether in the intimation of surrender any time limit was mentioned or not and in the event it is not mentioned, then, it would have to be considered as to whether the petitioner is entitled to the benefit of the judgment dated 30.8.2011 passed in Writ Tax No. 1273 of 2011 or not, of course in terms of the Rule 22 of the U.P. Motor Vehicle Taxation Rules, 1998. The vires of which has already been uphold by a Division Bench of this Court. In this regard the Court finds that there is a recital in the Appellate order to the effect that at the time of surrender Form-F a specific mention was made that the vehicle was being surrendered for under going repairs and was not to be used during this period within three months from 30.9.2014. Let the learned Standing Counsel produce the Form-F referred in the Appellate order, as, what has been annexed with the petition is only part 2 and 3 thereof. List/put up on 8.3.2018 for further hearing.” 4. Let the learned Standing Counsel produce the Form-F referred in the Appellate order, as, what has been annexed with the petition is only part 2 and 3 thereof. List/put up on 8.3.2018 for further hearing.” 4. Thereafter, the petitioner filed an application for amendment of the writ petition on 2.4.2018 seeking to challenge the vires of Rule 22(4) and (9) of the U.P. Motor Vehicles Taxation Rules, 1998 (For short ‘’the Rules, 1998') on the ground that they were violative of Section 12(2) of the U.P. Motor Vehicle Taxation Act, 1997 (For short ‘’the Act, 1997') and Articles 14 and 19 (1) (g) of the Constitution of India. 5. As regards the challenge to the vires by way of an amendment in the writ petition is concerned, the said amendment need not be considered for the simple reason that the vires was challenged in Writ Tax No. 1273 of 2011; Anil Kumar Gupta v. State of U.P. and others, which was repelled. The Division Bench considered the plea raised therein based on the decision of the Supreme Court in the case of State of Gujarat v. Kaushikbhai K. Patel, AIR 2000 SC 2175 and opined that the ratio of the said judgment did not apply to the relevant provisions of the Rules as applicable in the State of U.P., as, there was no such provision which ran contrary to the said judgment, in the Rules, 1998 applicable to the State of U.P. The vires of the aforesaid Rules as has been sought to be challenged in this writ petition was also considered by another Division Bench in Writ Tax No. 496 of 2014; Rishab Aneja v. State of U.P. and others and the same was again repelled, meaning thereby, the vires of the said Rules was upheld specifically and categorically in the said judgment dated 8.9.2014 wherein the Rule as amended in the year 2009 was considered. In this view of the matter once the Rule 22(4) and (9) have already been upheld by this Court there is no occasion to consider or allow an application for amendment seeking to challenge same. In this view of the matter once the Rule 22(4) and (9) have already been upheld by this Court there is no occasion to consider or allow an application for amendment seeking to challenge same. The contention of learned counsel for the petitioner that in Writ Tax No. 1273 of 2011 and Writ Tax No. 496 of 2014 challenge to the vires of Rule 22 (4) and (9) was limited to the extent that the provisions that the vehicle cannot be surrendered for more than three months in a year as being violative of Section 12(2) of the Act, 1997 and Article 254(2) of the Constitution of India, whereas, the petitioner seeks to raise other grounds, is absolutely misconceived. Rule 22(4) and (9) simply provide the liability of the owner of the vehicle to tax beyond the period of surrender which at the level of the Taxation Officer cannot be more than 90 days, therefore, there is no difference in the challenge sought to be made by the petitioner by the proposed amendment of the petition and the one raised before the Division Bench in the earlier writ petition which was repelled. In fact the petitioner also seeks to challenge the vires inter alia on the ground of violation of Section 12(2) of the Act, 1997 as was the case in the earlier matters. The contention that the ground of challenge is different is misconceived. Even otherwise there cannot be an unending challenge to the vires of a statutory provision or statutory Rule on the ground that it is being challenged on new grounds. The application seems to have been filed with oblique motive after the hearing on the earlier dates, so as to defer the inevitable. The application for amendment is accordingly rejected. 6. Now coming to the relief claimed in the writ petition the facts of the case in brief are that the petitioner was the owner of a Transport Vehicle, namely, Bolero (Jeep) bearing No. UP-41T-3051. It is an admitted factual position that the petitioner surrendered the vehicle alongwith the documents on 30.9.2014 before the Taxation Officer allegedly in terms of Section 12(2) of the Act, 1997 read with Rule 22 of the Rules 1998. It is an admitted factual position that the petitioner surrendered the vehicle alongwith the documents on 30.9.2014 before the Taxation Officer allegedly in terms of Section 12(2) of the Act, 1997 read with Rule 22 of the Rules 1998. It is said by the opposite parties that such surrender could not exceed beyond 90 days and as no application for extension of the said surrender beyond 90 days was submitted by the petitioner in terms of the Rule 22(4), therefore, a notice dated 9.7.2015 was issued to him in this regard, copy of which is on the original records of the Department which has been produced before the Court today. The said notice which was sent by ordinary post categorically states that the period of surrender expired on 31.12.2014 i.e. on expiry of 90 days from 30.9.2014, therefore, the petitioner was liable to tax on the vehicle in question w.e.f. 1.1.2015 to 30.9.2015 to the extent of Rs. 11880/-, but, no response was received from the petitioner. Thereafter, another notice dated 21.8.2015 was sent to him this time by registered post which was received by the petitioner as was admitted by the learned counsel for the petitioner during the course of argument when he said that this notice was annexed by him in the earlier writ petition and is also annexed with this writ petition as it had been received. 7. In fact after receipt of this notice on 10.2.2016 an application under the Right to Information Act was submitted by the petitioner which also discloses his admission of receipt of the said notice as has been considered in the impugned Appellate order. Inspite of the aforesaid the due tax which by that time went up to Rs. 23,760/- plus penalty of Rs. 10,098/-, total Rs. 33,858/-, was not deposited by the petitioner. Consequently, a recovery certificate was issued by the Taxation Officer, Faizabad on 20.1.2016 a copy of which is annexed as Annexure 2 holding the petitioner liable to the aforesaid amount of tax upto 31.3.2016. It is this certificate which was challenged by the petitioner before the Appellate Authority under Section 18 of the Act, 1997 read with Rule 27 of the Rules, 1998 albeit after approaching this Court and the dismissal of his writ petition on the ground of alternative remedy. It is this certificate which was challenged by the petitioner before the Appellate Authority under Section 18 of the Act, 1997 read with Rule 27 of the Rules, 1998 albeit after approaching this Court and the dismissal of his writ petition on the ground of alternative remedy. The appeal of the petitioner was dismissed by the Deputy Transport Commissioner (Passenger), Tax U.P./Appellate Authority vide his order dated 1.9.2016. The Appellate Authority recorded a finding that prior to issuance of the recovery certificate due notice was given to the petitioner by registered post on 21.8.2015 which is also borne out from the contents of his application under RTI Act dated 10.2.2016. The Appellate Authority also held that under law surrender of vehicle could not exceed 90 days unless an application was submitted before the Taxation Officer in this regard and acceptance of surrender by him is extended, on his recommendation, by the Higher Officer i.e. the Regional Transport Officer, which was not the case, therefore, the Appellate Authority opined that in view of Sub-rule 9 of Rule 22 the petitioner was liable to tax for the period upto to 31.3.2016. Accordingly, he rejected the appeal of the petitioner. 8. Learned counsel for the petitioner relied upon the Division Bench judgment in the case of Anil Kumar Gupta (supra) to contend that Form-F Part-2 which was given to him did not mention any period of non use of vehicle, therefore, in view of the law laid down in the said judgment dated 30.8.2011 the petitioner was not liable to tax, however, noticing this argument on the earlier date i.e. 22.8.2017 this Court had summoned the original Form-F which, as stated earlier, has been produced before it today. The original Form-F which was obviously submitted by the petitioner and bears his signature and the date 30.9.2014 clearly mentions that the surrender of the vehicle in question was w.e.f. 30.9.2014 and the same shall not be used within a period of three months from the said date. Thus, Form-F Part-1 which is on the original records categorically mentions the period of non use in terms of Section 12 read with Rule 22 and the judgment dated 30.8.2011 rendered in the case of Anil Kumar Gupta (supra), therefore, the said decision does not help the petitioner’s cause at all. 9. Thus, Form-F Part-1 which is on the original records categorically mentions the period of non use in terms of Section 12 read with Rule 22 and the judgment dated 30.8.2011 rendered in the case of Anil Kumar Gupta (supra), therefore, the said decision does not help the petitioner’s cause at all. 9. At this stage the learned counsel for the petitioner submitted that in fact the vehicle is lying at the Garage, namely, Bhagat Auto Garage. The original records which have been produced today contain the notices referred herein above which mention that an inspection of the vehicle was sought to be conducted in terms of Rule 22(8) of the Rules, 1998 but the location of the Garage itself could not be ascertained. Telephonic intimation in this regard was also given to the petitioner but neither the Garage nor the vehicle could be traced. The petitioner on his part did not respond to the notice. 10. As already stated earlier the vires of Rule 22(4) and (9) of the Rules, 1998 has already been upheld by this Court. For convenience Section 12 of the Act, 1997 is quoted herein below : “12. Non-use of vehicle and refund of tax.—(1) When any person who has paid the tax in respect of transport vehicle, proves to the satisfaction of the Taxation Officer in the prescribed manner that the motor vehicle in respect whereof such tax has been paid, has not been used for a continuous period of one month or more since the tax was last paid, he shall be entitled to a refund of an amount equal to one-third of the rate of quarterly tax or one-twelfth of the yearly tax, as the case may be payable in respect of such vehicle for each thirty days of such period for which such tax has been paid : Provided that no such refund shall be admissible unless such person has surrendered the certificate of registration, the token, if any, issued in respect of the vehicle and the permit, if any. to the Taxation Officer, before the period for which such refund is claimed. Provided further that where one-time tax has been paid for a motor vehicle under sub-section (1-A) of Section 4, the amount equivalent to 1/20 for each month shall be refunded in respect of such vehicle. to the Taxation Officer, before the period for which such refund is claimed. Provided further that where one-time tax has been paid for a motor vehicle under sub-section (1-A) of Section 4, the amount equivalent to 1/20 for each month shall be refunded in respect of such vehicle. (2) Where the operator or, as the case may be, the owner of a motor vehicle, does not intend to use his vehicle for a period of one month or more he shall, before the date the tax or additional tax, as the case may be, is due, surrender the certificate of registration, the token, if any, issued in respect of the motor vehicle and the permit, if any, to the Taxation Officer of the region where the tax or additional tax was last paid and on such surrender, no tax or additional tax under this Act shall be payable in respect of such vehicle for each complete calendar month of the period during which the vehicle remains withdrawn from use and the aforesaid documents remain surrendered with the Taxation Officer : Provided that in case such vehicle is found plying during the period when its documents as mentioned in this sub-section remain surrendered with the Taxation Officer, such owner or operator, as the case may be, shall be liable to the tax and the additional tax as if the documents were not surrendered and shall also be liable to the penalty equivalent to five times of the tax and additional tax. (3) Where the owner of a motor vehicle in respect whereof one-time tax has been paid under this Act proves to the satisfaction of the Taxation Officer in prescribed manner that such motor vehicle has not been used for a continuous period of one month or more, he shall be entitled to a refund of such tax may be specified by the State Government by Notification in the Gazettee for the said period : Provided that no such refund shall be admissible, unless the certificate of registration and the token, if any, issued in respect of the vehicle are surrendered by the owner with the Taxation Officer ; Provided further that the total amount of refund under this sub-section shall not exceed the one-time paid under this Act. (4) In calculating the amount of refund under sub-section (3) any portion of the period being less than a month shall be ignored. (5) The owner of a motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid under this Act shall be entitled to refund of such tax at the rates specified by the State Government by Notification in the Gazette on the ground that he has, after payment of such tax, paid tax in respect of such vehicle under any enactment relating to any tax on motor vehicles in any other State or Union Territory as a consequence of such vehicle having been brought over permanently to such other State or Union Territory or that such motor vehicle has been converted into a transport vehicle or that the registration of such motor vehicle has been cancelled. (6) Where any person who has paid the tax other than one-time tax in respect of an old motor vehicle, proves to the satisfaction of the Taxation Officer that the motor vehicle in respect of which such tax has been paid, has not been used for a continuous period of one month or more since the tax or instalment was last paid, he shall be entitled to a refund of an amount equal to one-twelfth of the rate of annual tax payable in respect of such vehicle for each complete calendar month of such period for which such tax has been paid : Provided that no such refund shall be admissible unless such person has surrendered the certificate of registration and the token, if any, issued in respect of the vehicle to the Taxation Officer, before the period for which such refund is claimed. (7) An operator of a transport vehicle entitled to any refund of tax under sub-section (1), shall also be entitled to refund of such portion of the additional tax paid under Section 6 as is attributable to the period for which he is entitled to refund under sub-section (1) ; and the amount of such refund shall be calculated on the same principle as is laid down in the said sub-section. (8) Where the operator, or as the case may be, the owner of a motor vehicle is unable to use his motor vehicle due to an accident of the said vehicle and the certificate of registration, the token, if any, issued in respect of the said vehicle and the permit, if any, are surrendered to the Taxation Officer within a week from the date of such accident together with a copy of the First Information Report, such surrender shall be deemed to have been made on the date of the accident.” Rule 22 of the Rules, 1998 is also quoted herein below : “22. Procedure in the case of non-use of a vehicle.—(1) When the owner of a motor vehicle has occasion to withdraw his motor vehicle from use for a period of one month or more, in the case of motor vehicle other than transport vehicle the certificate of registration and in case of transport vehicle the certificate of registration, tax certificate, additional tax certificate, if any, fitness certificate and permit, if any, must be surrendered to the Taxation Officer in Form ‘F’, otherwise the motor vehicle shall be deemed to have been in use. The vehicle shall not be kept outside in the territorial limit of the Taxation Officer during the period of surrender except with the prior permission of the Taxation Officer in exceptional circumstances. (2) The intimation of non-use shall be accompanied by a cash receipt of rupees ten to be deposited in the office of the Taxation Officer and shall be presented by the owner or his duly authorised agent to the Taxation Officer. (3) When the Taxation Officer, after satisfying himself that Form ‘F’ presented before him is complete, the documents as mentioned in sub-section (1) are attached and the fee prescribed in sub-rule (2) has been deposited, shall accept the surrender of the documents of the vehicle. The Taxation Officer shall complete part II of Form ‘F’ and return it to the claimant after entering the date of surrender in the documents produced with form ‘F’. The Taxation Officer shall complete part II of Form ‘F’ and return it to the claimant after entering the date of surrender in the documents produced with form ‘F’. (4) The Taxation Officer shall not accept the intimation of non-use of any vehicle for more than three calendar months, within a calendar year, however, the period beyond three calender months may be accepted by the Regional Transport Officer of the region concerned, on the recommendation of the Taxation Officer, if the owner makes application alongwith a fee of Rs. 10 to the Taxation Officer. If any vehicle remains surrendered for more than three calendar months during a year without the extension of acceptance of surrender it shall be deemed to be revoked and the owner shall be liable to pay tax and additional tax, as the case may be. (5) The Taxation Officer shall make entry and sign on each entry in the register maintained in form ‘F-2’ in the order of acceptance of surrender of documents for non-use of the vehicle under sub-rule (3). The Taxation Officer or any other Officer authorized by him in this behalf, shall sign whenever any entry is made in the register. The Taxation Office shall check such register on the last day of every calendar month and shall sign below the last entry therein. (6) A list of vehicles in respect of which the surrender of documents for non use has been accepted by the Taxation Officer and entries had been made during the calendar month in the aforesaid register shall be prepared in the end of each month and shall be provided to all the Enforcement Officers of sub-region. (7) The Taxation Officer may inspect by himself or by any officer authorised by him any motor vehicle which is kept under surrender and whenever the vehicle will be inspected, the report in brief thereof shall be entered in the register referred to in sub-rule (6). (8) The owner of a surrendered vehicle shall not remove it from the place specified by him during the period of surrender without prior permission in writing of the Taxation Officer. The Taxation Officer, after being satisfied on the application made by the owner of the vehicle alongwith the fee of ten rupees, may permit the owner to remove the vehicle from the stipulated place. The Taxation Officer, after being satisfied on the application made by the owner of the vehicle alongwith the fee of ten rupees, may permit the owner to remove the vehicle from the stipulated place. However, the owner of a vehicle may in unforseen circumstances such as flood, fire and the like, may remove the vehicle but he shall intimate the Taxation Officer of such removal within twenty four hours. (9) Subject to the provision of sub-rule (4), the owner of a surrendered vehicle in respect of which intimation of non-use has already been accepted, shall be liable to pay tax and additional tax for the period beyond three calendar months during any calendar year, whether the possession of the surrendered documents has been taken from the Taxation Officer or not. (10) When the owner of such motor vehicle desires to bring his motor vehicle into use again he shall make an application in Form ‘F-1’ and shall present it to the Taxation Officer alongwith a fee of ten rupees. If the owner of the surrendered vehicle has lost Part II of Form ‘F’ returned to him under sub-rule (1), he shall intimate with a declaration to that effect. If the period for which the tax has been is not expired on the date of such application all the documents which were surrendered, will be returned to the claimant after entering the date of return on the documents and in the surrender register. In other case an application for return of the documents in Form ‘F-1’ must be accompanied by an application in Form ‘D’ for payment of the due tax, if any, the Taxation Officer will return the documents after payment of tax in the said manner. In the case of a transport vehicle, the Taxation Officer shall ensure before returning the surrendered documents that the fitness and permit of the vehicle, if any, are valid, and if it is not so he shall in writing instruct the owner for taking necessary action in order to validate the documents.” 11. Rule 22 as quoted hereinabove has been substituted in place of the earlier Rule vide U.P. Motor Vehicle Taxation (Sixth Amendment) Rules, 2009 w.e.f. 28.10.2009. 12. Rule 22 as quoted hereinabove has been substituted in place of the earlier Rule vide U.P. Motor Vehicle Taxation (Sixth Amendment) Rules, 2009 w.e.f. 28.10.2009. 12. As is evident from a bare reading of the aforesaid provisions specially Rule 22 (4) and (9) the Taxation Officer can accept surrender of a vehicle for a period of three months and not beyond it. If the owner of the vehicle wants an extension of such surrender beyond the period of three months he has to file an application alongwith a free of Rs. 10 to the Taxation Officer, who then would either recommend or refuse to recommend the extension to the Regional Transport Officer and it is only when the Regional Transport Officer permits the extension of the acceptance of the surrender earlier made beyond the period of three calender months that the owner would not be liable to pay tax for such period otherwise the initial acceptance of surrender would automatically stand revoked if the vehicle remains surrendered for more than three calender months during a year. Subject to this Rule (4), the owner of a surrendered vehicle shall be liable to pay tax and additional tax for the period beyond three calender months during any calender year whether the possession of the surrender documents has been taken from the Taxation Officer or not, in view of Sub-rule 9 of Rule 22 of the Rules, 1998 the vires of which has already been uphold by this Court as already mentioned hereinabove. In this view of the matter, the Court does not find any error whatsoever either in the certificate of recovery issued by the Taxation officer or the Appellate order dated 1.9.2016. 13. As regards the contention of the petitioner that the vehicle was never used firstly it is a factual aspect which cannot be seen by this Court under writ jurisdiction in view of the findings in this regard by the authorities, secondly, the petitioner did not move any application under Rule 22(4) for extension of acceptance of surrender with requisite fee, therefore, no presumption can be raised of non-use of the vehicle nor tax liability can be avoided. 14. 14. As regard the liability of the petitioner for the period after 31.3.2016 is concerned, no proceedings have been brought on record by either of the parties, therefore, this Court does not dwell into the liability of the petitioner for this period, leaving it open for the opposite parties to proceed in accordance with law, which, needless to say, will entail due notice to the petitioner who may cooperate in such proceedings and explain his position for the said period, however, for the period upto 31.3.2016 the impugned orders are sustained. 15. With these observations and subject to the above the writ petition is dismissed. The original records are returned back to the learned Additional Chief Standing Counsel.