VELAYUDHAN NADAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant claims that he is not liable to pay tax for the period in question in respect of his motor vehicle on the ground that the provisions of S.5 which provide for exemption from tax under the Kerala Motor Vehicles Taxation Act 1976 are attracted. It is his case that the vehicle was sent to the garage for repairs and that therefore he sent an intimation in accordance with R.10 in Form G that the vehicle will not be used as it is in the garage for repairs. The authorities declined to exempt the appellant from payment of tax on the ground that it is not stated by the appellant as to what is the probable period during which the vehicle will not be in use. The requirement of S.5 is that exemption can be claimed only when previous intimation in writing is given to the Regional Transport Officer that the vehicle would not be used for the specified period. The essence of the matter is therefore of previous intimation that the vehicle would not be used and in regard to the actual period during which the vehicle would not be used. It is to give effect to the provisions of S.5 which provide for exemption that R.10 requires that intimation in this behalf shall be given to the concerned Regional Transport Officer in Form G or in writing with particulars required therein so as to reach him within one week from the date of commencement of the period for which exemption from payment of tax in respect of the vehicle is claimed due to non use. On receipt of such an intimation, under sub-r.(2) of R.10, the Regional Transport Officer is required to verify and make a necessary endorsement in the certificate of registration of the vehicle. Form G requires information being furnished about the place where the vehicle is garaged and the date of garaging, reasons for the non use, probable date on which the vehicle will be put to use, period upto which tax has been paid and the period for which tax exemption is requested for. In regard to the period for which tax exemption is requested for, the period specified is from 1-4-1981 to 30-9-1981. Tax exemption for this period in fact has been given. Thus it is not disputed that exemption has been granted as prayed for by the appellant in Form G. The appellant says that he has said in the letter accompanying G Form that the vehicle would be put to use only when it is ready. It is on this slender material that the appellant claims that he is entitled to exemption from payment of tax for the period subsequent to 30-9-1981 upto 30-9-1982 on the ground that the vehicle was in fact in the garage and was not put to use by the appellant. The learned single Judge has taken the view that previous intimation about non user for the period subsequent to 30-9-1981 as required by S.5 read with R.10 and Form G not having been given, the appellant is not entitled to claim any exemption. We find it difficult to disagree with the view taken by the learned single Judge.

(2.) Sub-s.(1) of S.3 is the charging section which provides that tax shall be levied on every motor vehicle used or kept for use in the State, at the rate specified for such vehicle in the schedule. Sub-s.(3) of S.3 provides that the registered owner of, or any person having possession or control of, a motor vehicle shall, for the purposes of this Act, be deemed to use or keep such vehicle for use in the State, except during any period for which no taxis payable on such motor vehicle under sub-s.(1) of S.5. Thus it becomes clear that a person having possession or control of a motor vehicle is deemed to have kept the vehicle for use in the State so as to attract tax liability under sub-s.(1) of S.3. The owner of the vehicle can seek exemption by complying with the provisions of sub-s.(1) of S.5. As already mentioned, sub-s.(1) of S.5 requires the previous intimation being given to the effect that the vehicle would not be used for the specified period. That is also the clear effect of R.10 and requirements of Form G. The essence of the matter, therefore, is of previous intimation specifying the period of non user in order to claim exemption from tax. Learned counsel for the appellant, however, relied upon the judgment of a learned single Judge of this court reported in 1985 KLJ 968 between Eastern Sea Foods (P) Ltd. and R.T.A. and Others. The learned single Judge has pointed out therein after consideration of S.5 and R.10 that what is payable is a compensatory tax, and not a penalty for violation of the section and the rule. It is for that reason that the learned single Judge has further held that the method indicated by S.5(1) for getting tax exemption is not exclusive and an enquiry regarding actual use or keeping for use is not ruled out by the section. In other words, this decision clearly lays down that even if there is non compliance of the provisions of sub-s.(1) of S.5 by the owner of the vehicle by not giving previous intimation as required by law, he would be entitled to claim exemption from payment of tax by establishing non user of the vehicle for the specified period. We find it extremely difficult to agree with this view taken by the learned single Judge. It is clear that payment of tax gets extracted in respect of every motor vehicle which is used or kept for use in the State. There is a presumption that every vehicle possessed by a person is deemed to have been kept for use in the State except in cases where the exemption is claimed under sub-s.(1) of S.5. In other words, if the exemption cannot be claimed by invoking sub-s.(1) of S.5, the liability to pay the tax automatically gets extracted and the person cannot claim exemption from payment of tax. In such a situation the question of making an enquiry as to whether the vehicle was actually used or not during the relevant period does not arise. Such a situation is covered by another provision in the Act, namely, S.6. This provision provides for refund of tax and reads as follows: