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2023 DIGILAW 1047 (GUJ)

Bhavin Jaigovind Agarwal v. State Of Gujarat

2023-09-02

SANGEETA K.VISHEN

body2023
JUDGMENT : (Sangeeta K. Vishen, J.) With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal. 2. Issue rule, returnable forthwith. Mr J.K. Shah, learned Assistant Government Pleader waives service of notice of rule for the respondents. 3. The petitioner, is aggrieved by the action of the respondents in placing the motor vehicle, bearing registration no.MH-02-EE-0999 (hereinafter referred to as “the vehicle”) in the ‘black list’. The petitioner has also prayed for direction to the respondents to issue no use certificate in respect of the no objection certificate (hereinafter referred to as the ‘NOC’) issued by the Motor Vehicles Department, Maharashtra. The petitioner has also prayed for refund of Rs.9,53,497/- levied and collected by the respondent from the petitioner; however, Mr Mitul K. Shelat, learned advocate with Mr Dharmesh M. Devnani, learned advocate for the petitioner, does not press the said prayer. 4. Briefly stated are the facts. 4.1 The vehicle, was sold by ACE PERKINS (Asset Cars Pvt. Ltd.) to M/s Marshal Vinimay Private Limited under the tax invoice dated 29.03.2016 and it was registered with Maharashtra Road Transport Department, bearing registration no.MH-02-EE-0999 in accordance with the applicable provisions by levying the lifetime tax, which was accordingly paid. 4.2 The petitioner purchased the vehicle from Big Boy Toyz under an invoice dated 08.08.2019 and was used in Mumbai, Maharashtra and the petitioner had applied for transfer of ownership and was transferred. The vehicle while was being brought to the State of Gujarat, was intercepted by the officer of the respondent no.2 and was seized on the ground of non-payment of tax and thus, the petitioner, was required to pay tax of Rs.9,53,497/-. Petitioner, accordingly, paid the said amount vide challan dated 04.12.2019. Since the petitioner was desirous of keeping the vehicle in the State of Gujarat, applied to the Maharashtra Road Transport Department for issuance of NOC to enable the petitioner to get the vehicle registered in the State of Gujarat. 4.3 The petitioner was issued NOC on 01.02.2022 by the Maharashtra Road Transport Department and it is thereafter, that the petitioner applied for registration of the vehicle with the office of the Regional Transport Office, Ahmedabad (henceforth “RTO”); however, the application was not processed. 4.3 The petitioner was issued NOC on 01.02.2022 by the Maharashtra Road Transport Department and it is thereafter, that the petitioner applied for registration of the vehicle with the office of the Regional Transport Office, Ahmedabad (henceforth “RTO”); however, the application was not processed. The petitioner in the interregnum, sold the vehicle and therefore, applied to the RTO for issuance of the no use certificate in respect of the NOC issued by the Maharashtra Road Transport Department. Since the application remained undecided, the petitioner inquired with the office of the respondent no.2 as regards its status. It is then the petitioner, was informed that the application is not processed as, the vehicle, has been put in the category of “black list” which, gave rise to an application by petitioner to the respondent no.2, calling upon it to remove the vehicle from the black list and to take steps for the purpose of issuance of no use certificate. 4.4 The petitioner since was clueless, issued a communication dated 10.11.2022 to the respondent no.1, bringing it to its notice the inaction; however, the petitioner did not receive any response. Reminder was sent on 15.12.2022; the same was also not responded to and therefore, the petitioner addressed a legal notice dated 31.12.2022. In response to the said legal notice, that the petitioner received the communication 24.01.2023 from the respondent no.3 intimating that on verification of the invoice given by the petitioner and comparing the value of the vehicle with similar model, the vehicle, is more than Rs. 1 crore and therefore, since the tax paid, was on a lower side the vehicle has been put in the black list. 4.5 The petitioner, therefore, responded to the notice bringing it to the notice of the respondent that the action was unauthorized inasmuch as, at no point of time, the petitioner was issued any notice or any demand was made, much less the reference to the invoice of Cargo Motors. The petitioner also pointed out that the vehicle was assessed and valued by two authorities, namely, Maharashtra Regional Transport Office and Gujarat Regional Transport Office. 4.6 In pursuance to the notice dated 15.02.2023, RTO, Ahmedabad issued a letter dated 23.03.2023, reiterating that as value of the vehicle is more than Rs. The petitioner also pointed out that the vehicle was assessed and valued by two authorities, namely, Maharashtra Regional Transport Office and Gujarat Regional Transport Office. 4.6 In pursuance to the notice dated 15.02.2023, RTO, Ahmedabad issued a letter dated 23.03.2023, reiterating that as value of the vehicle is more than Rs. 1 crore and tax paid is less, it is only after differential tax is paid that the application for issuance of non-use certificate will be processed. Being aggrieved that the petitioner has filed the captioned writ petition with the abovereferred prayers. 5. Mr Mitul K. Shelat, learned advocate assisted by Mr Dharmesh M. Devnani, learned advocate for the petitioner submitted that the certificate of registration was issued by the State of Maharashtra under the provisions of Section 48 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act of 1988’) after processing the application. Petitioner, had purchased the vehicle from Big Boy Toyz on 08.08.2019 and the invoice issued, indicated the value of the vehicle at Rs.72,00,000. It is submitted that the vehicle was brought to the State of Gujarat and when required to pay the amount of tax, the petitioner, deposited Rs.9,53,497/- towards the tax determined for which, the concerned department has issued the receipt and thereafter, nothing was heard from the department. 5.1 It is next submitted that since the petitioner was desirous of selling the vehicle, necessary steps were taken for the purpose of issuance of no use certificate of NOC, at that point of time, the petitioner came to know that the vehicle, is blacklisted. It is submitted that NOC was issued by the Maharashtra Road Transport Department when the vehicle, was brought within the State of Gujarat. As NOC issued by the said department, was not used, the petitioner requested the respondent to issue the no use certificate with respect to the NOC. 5.2 It is submitted that when the application remained undecided that the petitioner tried to find out the status online, and was surprised to notice that the vehicle was categorised as “blacklisted”. When nothing was heard, the petitioner, addressed letters dated Nil.10.2022 and 10.11.2022. 5.2 It is submitted that when the application remained undecided that the petitioner tried to find out the status online, and was surprised to notice that the vehicle was categorised as “blacklisted”. When nothing was heard, the petitioner, addressed letters dated Nil.10.2022 and 10.11.2022. Since the petitioner, was faced with the blacklisting of the vehicle, the petitioner, issued a legal notice to the respondents for removal of the vehicle from the black list, so also issuance of no use certificate with respect to the NOC issued by the Maharashtra Road Transport Department. The petitioner, had received a reply dated 24.01.2023 and came to know that the vehicle of the petitioner has been put in the black list, as according to the authorities tax paid was less compared to the value of the vehicle. 5.3 It is next submitted that the petitioner, therefore, addressed another legal notice dated 15.02.2023, inter alia, pointing out that the verification undertaken by the respondent authority with Cargo Motors, was never made known to the petitioner and in absence of the documents provided to the petitioner, he was not in position to make any submission. The petitioner requested the authorities to consider the aspects of payment of tax of Rs.9,53,497/-. It was also pointed out that it is only after the office had assessed that the tax was demanded and was duly paid. The petitioner hence, requested to release the vehicle from the category of black list and to issue the no use certificate. 5.4 It is next submitted that what the petitioner received was a communication dated 23.03.2023 on the same lines. It is submitted that clearly, the action on the part of the respondent authorities, is without any authority and jurisdiction. Moreover, the action on the part of the respondent, of putting the vehicle in the blocked/black list, is in sheer violation of principles of natural justice. It is further submitted that when the authority, has assessed the tax and was duly paid, in the month of December, 2019, it would be impermissible for the State Government to review its decision beyond a period of two years. 5.5 It is submitted that Section 14A of the Gujarat Motor Vehicles Tax Act, 1958 (hereinafter referred to as the ‘Act of 1958’) contemplates the powers of revision to the State Government. 5.5 It is submitted that Section 14A of the Gujarat Motor Vehicles Tax Act, 1958 (hereinafter referred to as the ‘Act of 1958’) contemplates the powers of revision to the State Government. It is submitted sub-section (1) of Section 14A of the Act of 1958 provides that the State Government may of its own motion or on the application of any aggrieved person call for and examine the record of any proceeding under this Act for the purpose of satisfying itself as to the legality or propriety of any order passed therein by the Taxation Authority or by the person or authority referred to in subsection (1) of Section 14. It further submitted that sub-section (2) of Section 14A provides that no order shall be revised under subsection (1) by the State Government of its own motion and no application under that sub-section by any aggrieved person for the revision of any order shall be entertained by the State Government, after the expiry of two years form the date of such order. 5.6 It is therefore, submitted that considering the provisions of sub-section (2) of Section 14 of the Act of 1958, the action on the part of the respondent authority putting the vehicle in the category of the black list, would be without jurisdiction. It is therefore, submitted that on all counts, the action of the respondent authority, deserves to be quashed and set aside with a direction to the respondent authorities to issue the no use certificate in respect of the NOC issued by the Motor Vehicles Department, State of Maharashtra. 6. Mr J.K. Shah, learned Assistant Government Pleader for the respondents has made submissions along the lines of the reply filed by the respondents. It is submitted that there is an alternative efficacious remedy available to the petitioner in view of provisions of Section 14 of the Act of 1958. It is submitted that two different invoices of different dates were produced and therefore, the dealer in Ahmedabad was approached to verify the actual price of the vehicle. It is submitted that upon inquiry, it was found that the value of the vehicle is more than Rs. 1 crore. 6.1 It is submitted that the petitioner has paid less amount of tax and therefore, the vehicle of the petitioner was blacklisted. It is submitted that upon inquiry, it was found that the value of the vehicle is more than Rs. 1 crore. 6.1 It is submitted that the petitioner has paid less amount of tax and therefore, the vehicle of the petitioner was blacklisted. It is submitted that the legal notice issued by the petitioner was duly replied vide communication dated 24.01.2023, informing that since petitioner has paid less tax, was required to pay difference of the tax amount and upon payment, that the vehicle would be removed from the category of black list. It is therefore, submitted that there is no error committed by the authorities in putting the vehicle of the petitioner in category of black list. 7. Heard learned counsel appearing for the respective parties and considered the documents available on record. 8. The facts discernible from the record are that, the vehicle was sold by ACE PERKINS (Asset Cars Pvt. Ltd.) to M/s Marshal Vinimay Private Limited under the tax invoice dated 29.03.2016 and was registered with Maharashtra Road Transport Department bearing registration no.MH-02-EE-0999. The lifetime tax was levied and paid, followed by issuance of registration certificate by the Maharashtra Road Transport Department. Petitioner has purchased the vehicle from Big Boy Toyz under an invoice dated 08.08.2019, which according to the petitioner was used in Mumbai, Maharashtra. Subsequently, the petitioner applied for transfer of the ownership which permission was accorded to. Since the vehicle was brought in the State of Gujarat, it was intercepted on the ground of nonpayment of tax. Petitioner, was called upon to pay tax of Rs.9,53,497/- which, was accordingly paid and for which, there is no dispute. The petitioner, applied to the Maharashtra Road Transport Department for issuance of NOC so as to enable the petitioner to get the vehicle registered with the State of Gujarat and NOC was issued, which was submitted to the RTO, Gujarat, followed by request of registration with the office of the Regional Transport Office, Ahmedabad. 9. In the interregnum, the petitioner sold the vehicle and therefore, applied to the respondent department for issuance of the no use certificate with respect to the NOC issued by the Maharashtra Road Transport Department. 9. In the interregnum, the petitioner sold the vehicle and therefore, applied to the respondent department for issuance of the no use certificate with respect to the NOC issued by the Maharashtra Road Transport Department. Pertinently, when the vehicle was brought to the State of Gujarat, the petitioner was made to pay the tax and which has been duly paid, which fact, is strengthened by the receipt issued by the Gujarat Motor Vehicle Department, evidencing the payment of Rs.9,53,497/- somewhere in the month of December, 2019. Thereafter, nothing was heard and it is only when the petitioner inquired, as per the online details, the vehicle was found in the category of black list. The petitioner, tried to make an inquiry and was informed that the vehicle, has been blacklisted since the petitioner has not made the payment towards the tax. 10. The petitioner had issued a communication dated Nil.10.2022, followed by another communication dated 10.11.2022, reiterating the request; however, there was no response at all which led to the issuance of the legal notice dated 31.12.2022. In response to the notice, that the Regional Transport Office, Ahmedabad, issued a communication dated 24.01.2023, inter alia, stating that the vehicle has entered in the State of Gujarat on 08.08.2019 and thereafter, was detained by the Ahmedabad City Police on 30.11.2019. According to the Regional Transport Office, Ahmedabad, since the vehicle, has remained in the State of Gujarat for more than 3 months, no exemption was available. The letter also states that on 03.12.2019, that the petitioner, had submitted the documents together with the affidavit and on 04.12.2019, that the tax was recovered. 11. Thereafter, on 15.02.2023, a notice was issued on behalf of the petitioner, inter alia, stating that the vehicle, was registered with the Maharashtra Road Transport Department after payment of applicable tax as levied under the Act of 1988. Purchase of the vehicle from the first owner to the said dealership in terms of the invoice after payment of the amount stated in the invoice and applicable tax. The fact of payment of tax of Rs.9,53,497/- to the Regional Transport Office, Ahmedabad, was also referred to. With this, the request was made for issuance of the no use certificate; however, the said notice was replied on 23.03.2023, reiterating the stand taken in the communication dated 24.01.2023. 12. The fact of payment of tax of Rs.9,53,497/- to the Regional Transport Office, Ahmedabad, was also referred to. With this, the request was made for issuance of the no use certificate; however, the said notice was replied on 23.03.2023, reiterating the stand taken in the communication dated 24.01.2023. 12. Clearly, after the tax was paid on 04.12.2019 by the petitioner, no steps appear to have been taken by the respondent authorities and unilaterally and without any knowledge to the petitioner, that the vehicle was put in the category of the blocked/black list. The action of the respondent authorities, categorizing the vehicle as a blacklisted vehicle, was in violation of the principles of natural justice inasmuch as, the petitioner, was never informed about the said action. Tax paid, was Rs.953,497/- and if at all, the respondent authorities were of the opinion that the tax paid, was in deficit, it was expected of the authorities to have taken steps immediately; however, nothing has been placed on record to suggest that any steps were taken. Even after 04.12.2019, no order appears to have been passed and it is only upon inquiry by the petitioner as per the online status, the vehicle was shown to have blacklisted. 13. Pertinent would be Section 14A of the Act of 1958 which provides the powers of the revision to the State Government for the purpose of satisfying itself as to the legality or propriety of any order passed therein by the taxation authority. Sub-section (2) of Section 14A provides that no order shall be revised under subsection (1) by the State Government of its own motion and no application under that sub-section by any aggrieved person for the revision of any order, shall be entertained by the State Government after the expiry of two years from the date of such order. Section 14A of the Act of 1958 reads thus:- “14A. Section 14A of the Act of 1958 reads thus:- “14A. (1) The State Government may of its own motion or on the application of any aggrieved person call for and examine the record of any proceeding under this Act for the purpose of satisfying itself as to the legality or propriety of any order passed therein by the Taxation Authority or by the person or auhority referred to in sub-section (1) of section 14, and if it shall appear to it that any order passed therein requires to be modified, annulled, or reversed, it may, after giving the person affected by, or interested in, such order, an opportunity of being heard and after making, or causing to be made, such inquiry as it deems necessary, pass such order thereon as the circumstances of the case justify, including an order directing fresh proceedings : Provided that no record of any proceeding of a Taxation Authority shall be called for – (i) in a case where an appeal from the order passed therein has been filed, when such appeal is pending, and (ii) in a case where an appeal has not been filed from such order, before the expiry of the time prescribed for filing such appeal. (2) No order shall be revised under sub-section (1) by the State Government of its own motion and no application under that sub-section by any aggrieved person for the revision of any order shall be entertained by the State Government, after the expiry of two years from the date of such order.” 14. Clearly, there is a limitation provided of two years to the State Government to call for and examine the records of any proceeding for the purpose of satisfying itself as to the legality and propriety of any order passed by the taxation authority. After the expiry of two years, there is a bar to entertain any revision application against any orders passed by the authorities under the Act. In the case on hand, it is not the State Government who is seeking to revise the order, but the authority who accepted the tax in the month of December, 2019, has subsequently blacklisted the vehicle. Possibly on the ground that less tax has been paid compared to the value of the vehicle. In the case on hand, it is not the State Government who is seeking to revise the order, but the authority who accepted the tax in the month of December, 2019, has subsequently blacklisted the vehicle. Possibly on the ground that less tax has been paid compared to the value of the vehicle. If this is the stand, it means that the authority, who has accepted the tax in the month of December, 2019, is not satisfied with the amount of tax paid. It at all the authority, was not satisfied with the amount of tax paid, it ought to have initiated further proceedings as available in law. In absence of any further determination or adjudication, it is difficult to fathom as to whether it was open to the respondent authorities to have raised the objection that the tax paid, is less. Once the tax as demanded was paid and order, if any passed, it ought to have been challenged before the higher authority. Also, for demanding further tax, no justification is coming forth except the explanation that the tax paid is on a lower side. In the instant case, what the authorities have tried to attempt, is sitting in appeal over its own decision which, otherwise would be impermissible. 15. Besides, Section 12, 12A and 12B of the Act of 1958 would also be relevant to examine as to whether the authorities could have blacklisted the vehicle, which read thus:- “12. Any tax, penalty or interest due, and not paid as provided by or under this Act shall, subject to the other provisions of this Act, be recoverable in the same manner as an arrear of land revenue. 12A. No motor vehicle used or kept for use in the State shall be used on any road in the State where the tax payable in respect of such vehicle remains unpaid for more than thirty days after it has become due under the provisions of this Act, until the tax, penalty and interest, if any, due is paid. 12B. 12A. No motor vehicle used or kept for use in the State shall be used on any road in the State where the tax payable in respect of such vehicle remains unpaid for more than thirty days after it has become due under the provisions of this Act, until the tax, penalty and interest, if any, due is paid. 12B. Without prejudice to the provisions of sections 12,12A and 16 where any tax due under this Act in respect of any vehicle has not been paid, an officer not below the rank of 1 [an Assistant Inspector of Motor Vehicles] or an Inspector of Police, as the State Government may empower in this behalf, seize and detain such vehicle and for this purpose, take or cause to be taken all steps as he may consider necessary for the proper maintenance and safe custody of the vehicle until the tax, penalty and interest, if any, due in respect of such vehicle and charges for the custody and maintenance of vehicle, is paid: Provided that if the tax due under this Act is not paid within a period of three months from the date on which such vehicle has been seized or detained such vehicle shall be liable to be sold by auction by the taxation authority in the manner as may be prescribed: ……...” Section 12 of the Act of 1958 provides that any tax, penalty or interest due and not paid, shall, subject to the other provisions of the Act, be recoverable in the same manner as an arrear of land revenue; Section 12A provides that tax payable in respect of vehicle, if remains unpaid for more than thirty days, after it has become due, until the tax due is paid, the vehicle, shall not be used on any road. Therefore, after it has become due, the vehicle, cannot be permitted to be used on the road. Section 12B gives the power to the concerned authority to seize and detain such vehicle. Proviso to Section 12B enumerates that if the tax due under the Act is not paid within a period of three months from the date on which such vehicle has been seized or detained, it shall be liable to be sold by auction by the taxation authority in the manner as prescribed. Proviso to Section 12B enumerates that if the tax due under the Act is not paid within a period of three months from the date on which such vehicle has been seized or detained, it shall be liable to be sold by auction by the taxation authority in the manner as prescribed. No such procedure, has been followed and the only stand taken by the respondent authorities is, blacklisting of vehicle for non-payment of tax. 16. Mr J.K. Shah, learned Assistant Government Pleader, could not point out as to under what provisions of the Act and the applicable Rules, such a step has been taken by the respondent authorities. In absence of any provisions pointed out, the action of blacklisting the vehicle, in the opinion of this Court, would be without any authority, arbitrary and illegal. 17. Moreover, the inquiry which was initiated by the respondent authorities, was unilateral. Nothing has been placed on record except the communication/e-mail dated 01.12.2022 issued by the Cargo Motors Pvt. Ltd. Jaguar Land Rover Division, providing the details of various models together with its price. Such an inquiry conducted by the respondent authorities, was a fishing or roving inquiry which, would be impermissible. If at all the respondent authorities was of the opinion that the tax paid, was on a lower side what was expected of the respondent authorities, was to have conducted the inquiry permissible in law and offering an opportunity to the petitioner to give his explanation; however, nothing has been done and unilateral action is taken. Thus, the action of the respondent authorities, blacklisting the vehicle, deserves to be quashed and set aside. Thus, the respondent authorities, are directed to remove the vehicle from the category of black list and are further directed to take steps in furtherance of the request of the petitioner for issuance of the no use certficate in accordance with law. 18. The petition, succeeds and is accordingly, allowed. Rule is made absolute to the aforesaid extent. No order as to costs.