KANNAPPAN Vs. R T O

JUDGEMENT

(1.) The petitioners are owners of motor vehicles registered as stage carriages. They did not ply them on the respective routes for some time. Despite claim to the contrary, they had also apparently failed to apply for exemption from payment of tax, in time, under S.5 of the Kerala Motor Vehicles Taxation Act, 1976 (Act 19/1976). The Taxation Officer demanded payment of tax for the periods the vehicles were off the road. The appellate authority declined to accept the petitioner's contention that notwithstanding their failure to comply with S. S, the question of actual user could be gone into separately and they could be relieved from tax liability if it was found that the vehicles concerned were not used or kept for use during the periods in question. It was an admitted fact in both the cases that the vehicles were not used on the roads, and were also not being kept for use.

(2.) The writ petitions are directed against the decision of the Taxation Officer and the orders of the Appellate Authority. The petitioners maintain that failure to apply for exemption under S.5 (read with R.10) cannot, by itself, foreclose an en enquiry into the question of tax liability depending on user of the vehicles. I had taken such a view in Eastern sea Foods v. RTA and others ( 1985 KLJ 968 ), following earlier decisions of this Court, but it did not find favour with a Division Bench, in Velayudhan Nadar v. State ( 1986 KLT 633 ). Though the learned Government Pleader would suggest, with the touch of a ship-wrecked mariner sighting a sail, that I should follow the view of the Division Bench and dismiss the writ petitions. I must hesitate a little whether others seem to be confident.

(3.) The Kerala Motor Vehicles Taxation Act, 1976 had repealed and replaced the earlier enactment on the subject of vehicle taxation, namely, the Kerala Motor Vehicles Taxation Act, 1963 (Act 24/63). It is useful to note that the material provisions of both the 1963 and 1976 enactments relating to levy of tax, payment of tax, exemption from tax and refund of tax are more or less similar. I shall first extract the relevant provisions of the 1963 Act:-