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2024 DIGILAW 1296 (KER)

Radhalakshmi v. District Collector

2024-10-10

P.M.MANOJ

body2024
JUDGMENT : (P.M. MANOJ, J.) The writ petition is preferred as being aggrieved by the issuance of Ext.P2 memo, whereby it is directed to remit Rs.22,000/- towards the tax due in respect of a vehicle bearing registration No.KL-13/N-2151 for the period between 01.10.2011 and 31.03.2014. 2. It is stated by the petitioner that he is the owner of the vehicle bearing registration No. No.KL-13/N-2151. The vehicle was seized on 27.01.2012 by the Sub Inspector of Police, Shornur, for unlawful transportation of river sand and a fine of Rs.1,20,000/- was imposed on the petitioner by the District Collector vide order dated 04.06.2013. Since the petitioner was not in a position to remit the amount, the vehicle was confiscated, and the proceedings were pending. The vehicle was under the custody of the Shornur Police Station compound since 27.01.2012. Thereby it is contended that the vehicle was not used on the road by the petitioner. 3. Even then Ext.P2 memo is issued with respect to payment of tax between 01.10.2011 to 31.03.2014. It is contended by the petitioner that the said demand raised by the 3rd respondent is arbitrary and illegal. It is further contended that Form G under Section 5 of the Kerala Motor Vehicles Taxation Act could not be filed by the petitioner, as the vehicle was in the control and possession of the District Collector and Police. It could be filed only if the petitioner is in possession and control of the vehicle. 4. In response to that the learned Government Pleader submitted that the vehicle was seized only on 27.01.2012. However, the tax arrears shown in Ext.P2 are from 01.10.2011. Hence, the prayer sought by the petitioner for exemption of tax for the entire period cannot be waived off and he is liable to pay the tax from 01.10.2011 to 27.01.2012, in which he was in perfect custody of the vehicle, as the vehicle was seized only on 27.01.2012 by the Police for unlawful transportation of river sand. 5. I have heard Sri.P.Jayaram, the learned counsel for the petitioner and Sri.Sayed M.Thangal, the learned Government Pleader for the respondents. 6. 5. I have heard Sri.P.Jayaram, the learned counsel for the petitioner and Sri.Sayed M.Thangal, the learned Government Pleader for the respondents. 6. On considering the facts involved in this case, it appears that the issue is covered to a great extent as per the reported decision in Jomon M. Arackal v. Tahsildar, Muvattupuzha Taluk and others [ 2015 (1) KLT 163 (L.B.) = 2015 (1) KHC 1 ], The relevant portion of the judgment is extracted here under:- "In the light of the above discussion, it can be seen that there is, in fact, no conflict between the views taken by the Full Bench in Abdurahiman's case (Supra) and the referring Full Bench in Jomon's case (Supra), inasmuch as while the former bench was concerned with cases where the detention of the vehicle in police custody was for non-payment of tax under the Act, the latter bench was concerned with a case where the detention of the vehicle in police custody was for an offence other than nonpayment of tax under the Act. We do not, however, agree with the observations of the Full Bench in Jomon's case (Supra), that would suggest that even in a case where the vehicle is in police custody for non-payment of tax due under the Act, the person claiming exemption need not follow the procedure of filing Form G as it would be impossible of performance. We are of the view that the provisions granting exemption in a taxing statute have to be strictly construed and, if a person is not able to comply with the statutory conditions for claiming exemption from tax, it is a clear indication of the fact that the statute never intended to grant an exemption in such cases. We, therefore, answer the reference in the following manner; (i) In cases where the vehicle is held in the custody of the police or other authorities for non-payment of tax due under the Act, a claim for exemption from payment of tax for the period during which the vehicle is in such custody can be made only in terms of Section 5 of the Act, read with Rule 10 of the Rules. In such cases, the claim for exemption will have to be preferred through the filing of an application in Form G as mandated under Rule 10 of the Rules; (ii) In cases where the vehicle is held in the custody of the police or other authorities for offences other than non-payment of tax due under the Act, a claim for exemption from payment of tax for the period during which the vehicle is in such custody can be made in terms of Section 22 of the Act, read with Clause 27 of SRO 878/1975. In such cases, there will be no need to file an application in Form G, as mandated under Rule 10 of the Rules; (iii) In either event, it will be open to an assessee under the Act to pay the tax demanded and seek a refund of the same, in terms of Section 6 of the Act read with Rule 15 of the Rules, by establishing that the vehicle in question was not used in the State on account of it being in the custody of the police or other authorities. Based on our answer to the issues referred to this Bench, we allow Writ Appeal No.20/2008 and Writ Petition Nos.29555/2009 5664/2013 and 7597/2013 by declaring that the writ petitioners therein will not be liable to pay motor vehicles tax for the vehicles concerned, for the period during which the vehicles were in the custody of the police or other authorities for offences other than non-payment of tax due under the Act. The demand notices issued to the writ petitioners in the said cases are consequently quashed. As far as Writ Petition No.24912/2010 is concerned, however, we note that the vehicle belonging to the writ petitioner was seized for non-payment of tax under the Act and the petitioner was served with demand notices for motor vehicles tax for the period from 01.04.2003 to 31.03.2004 and 01.04.2007 to 31.03.2008, during which the vehicle was under custody for the said offence. Although the petitioner maintains that he had filed the necessary G forms for the said period, the respondents dispute the said submission. Under the said circumstances, we deem it appropriate to relegate the petitioner to the appellate remedy under the Act, against Ext.P2 order that is impugned by him in the writ petition. Although the petitioner maintains that he had filed the necessary G forms for the said period, the respondents dispute the said submission. Under the said circumstances, we deem it appropriate to relegate the petitioner to the appellate remedy under the Act, against Ext.P2 order that is impugned by him in the writ petition. If the petitioner files an appeal against Ext.P2 order, within a period of two weeks from the date of receipt of a copy of this judgment, the appellate authority shall consider the same on merits, based on the law laid down in this judgment, and after verifying the factual particulars as regards the filing of G Forms by the petitioner for the period in question. Thus, it is specifically clarified that in cases where a vehicle is held in the custody of the Police or other authorities for an offence other than non-payment of tax due under the Kerala Motor Vehicles Taxation Act, 1976 (for short 'the Act'), a claim for exemption from payment of tax for the period during which the vehicle is in custody can be made in terms of Section 22 of the Act read with Clause 27 of SRO 878/1975. In such cases, there will be no need to file an application in Form G, as mandated under Section 10 of the Kerala Motor Vehicles Taxation Rules, 1975 (for short 'Rules'). However, it is a factor to be considered by the Government that there is due of tax between 01.10.2011 and 27.01.2012. 7. In the case on hand, the petitioner’s vehicle was seized on 27.01.2012 by the Sub Inspector of Police, Shornur, for illegal transportation of river sand. However, the tax was in arrears from 01.10.2011. The demand is raised with respect to tax arrears from 01.10.2011 to 31.03.2014. Though the major portion of the period in which tax was in arrears is covered by the ratio decided in Jomon Arackal (supra), that does not preclude the authorities from calculating tax for the period from 01.10.2011 to 27.01.2012, i.e. the date of arrears of tax commenced till the date of confiscation of the vehicle by the police in which the owner of the vehicle is liable to pay tax for the period between 01.10.2011 and 27.01.2012. For that purpose, the respective authorities shall proceed with recovery steps against the petitioner. 8. For that purpose, the respective authorities shall proceed with recovery steps against the petitioner. 8. In the aforesaid circumstances, there will be a direction to the 5th respondent to consider the request, if any, made by the petitioner for exemption of tax under Section 22 of the Act in the light of directions given by this Court in Jomon Arackal (supra). In this regard, there will be a direction to the petitioner to approach the Government for exemption of tax for the period between 28.01.2011 and 31.03.2014, he cannot claim exemption with respect to the period from 01.10.2011 to 27.01.2012. For the period between 01.10.2011 to 27.01.2012, the 3rd respondent can take further steps as the same is not covered under the ratio decided in Jomon Arackal (supra). 9. The petitioner shall approach the 5th respondent by filing a representation for exemption of tax under Section 22 of the Act. At this juncture, it is noticed that already an interim order was granted by this Court, on the condition that the petitioner shall deposit a sum of Rs.10,000/- within a period of one week, but that was not complied with. Under such circumstances, the 1st respondent is free to impose appropriate conditions for considering the representation so filed by the petitioner under Section 22 of the Act. The entire exercise shall be completed within a period of four months from the date of receipt of a certified copy of this judgment. Accordingly, the writ petition is disposed of as above.