MANI Vs. ASST COMMISSIONER ASSESSMENT COMMERCIAL TAXES

JUDGEMENT

(1.) The petitioners in these cases have got a common grievance in so far as Ext.Pl3 order passed by the first respondent in WP(C) No. 33469/2008 as well as Ext.P11 order passed by the first respondent in the other case under Section 30(1) of the Kerala Tax Paper Lotteries Act, 2005 have been subjected to challenge on many a ground, legal as well as factual. The petitioner in the former case contends that, he was the owner of the vehicle bearing No. KA 3D 2189 and that he had made some arrangements with the 4th respondent for transportation of goods from different places, of course providing a driver. It is said that the 4th respondent in turn entered into agreement with the 5th respondent; on the basis of which the goods were being transported from place to places. While so, the vehicle was intercepted by the first respondent at the check post at Walayar on 18.08.2008 and Ext.Pl notice was issued to the driver, who allegedly after accepting same, ran away. Subsequently, the physical verification of the goods contained in the vehicle as proposed in Ext.P9 was conducted on 21.08.2008; whereupon it was revealed that the goods being transported were mainly 'paper lotteries', without any authority of law and that they were brought from outside, with unlawful designs. This made the first respondent to pass Ext.P10 notice of detention ordered on 21.08.2008, followed by Ext.P4 notice issued under Section 30(1) of the Act on 26.08.2008,

(2.) Admittedly, the above notice was issued to the registered owner of the vehicle, who is the petitioner in WP(C) 33469/2008 and also to the petitioner in the other case (none other than the 5th respondent in the former case). Both the parties submitted their objection before the first respondent contending that they were never liable to be proceeded against and that they had no idea regarding the contents of the goods transported; that the goods were actually sent by the consignor by name 'Good luck' and hence that the consignor was to be held as the transporter of the goods etc. The petitioner in the latter case had also filed a petition before the first respondent to implead the consignor as well for effective adjudication of the issue, it is stated that even though summons was ordered, it could not be served, as the addressee refused the same and in the said circumstances, the first respondent has proceeded with further coercive steps leading to the impugned order, fixing huge liability upon the petitioner; which in turn is subjected to challenge before this Court.

(3.) Learned Counsel for the petitioner in WP(C) 33469/2008 submits that the charging provision, i.e.. Section 30(1) fixes liability only on the 'transporter 1 and not on the registered owner, in support of the said proposition, the learned counsel places reliance on the 'second proviso', (wherein the provision for serving show cause notice to the party concerned is stipulated) providing an opportunity of hearing to the 'transporters, it is the contention of the petitioner that since the terms 'transporters and "registered owner" have been separately referred to in the second proviso, it shall be deemed that the terms 'transporters as appearing in the charging provision [Section 30(1) of the Act] shall mean only as a different person than the registered owner. The above proposition does not appear to be palatable to this Court, for many a reason.