MAHESH DUTT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.A.Y.Kogje, learned Assistant Government Pleader, appears and waives service of notice of Rule on behalf of the respondents.

(2.) The petitioner, being aggrieved by the act of the respondents asking him to pay the tax on the total capacity of the bus, which includes sitting arrangement and the sleeper berths, treating the whole bus as a sleeper designated omnibus, is before this Court with a submission that according to Section-3A of the Bombay Motor Vehicles Tax Act, 1958 ( the Act for short), the omnibuses have been classified as ordinary designated omnibuses/luxury or tourist designated omnibuses and the rate of tax is provided under Section-3A of the Act, but, the Home Department has issued a Notification dated 1st April, 2002 whereunder they have inserted Clause-1AA in the schedule appended to the earlier Notification and have provided tax liability on sleeper designated omnibuses. His submission is that no problem would arise in a case where the bus is an ordinary designated omnibus or luxury/tourist designated omnibus and/or a sleeper designated omnibus, but, the problem arises in a case where a particular bus has a sitting capacity and also provides berths for sleep to some passengers. According to him, in a case of joint user of such a bus, the tax is to be levied per passenger per seat at a particular rate, and for every sleeper berth, the tax is to be levied in view of the sleeper capacity. The further submission is that the petitioner's bus has a capacity of 31 passengers sitting and 15 passengers sleeping, therefore, for the sitting capacity, the tax is to be charged under Clause-1 or 2 of the Notification and for the sleeper facility, the tax is to be charged on the basis of number of sleeper berths. His submission is that the respondents are illegally demanding the tax at the rate of Rs.12,000/- per berth though the capacity of sleepers is 15 only and that the petitioner can be charged at the rate of Rs.9,000/- per berth. It is also submitted that clarifying the position, a departmental circular dated 8th August, 2005 was issued by the Joint Transport Commissioner, Gujarat that the number of seats and berths are to be separately calculated, but, the Taxing Department is not observing the said circular and are charging the tax illegally. The submission is that the respondents deserve a direction that the petitioner can be charged tax on 15 berths at the rate of Rs.9,000/- per berth. It is also submitted that if the number of sleeper berths is only 15, then, the respondents would not be justified in charging at the rate of Rs.12,000/-, as the said taxing provision is applicable to the capacity of more than 20 sleeper berths.

(3.) On a notice to the other side, Mr.A.Y.Kogje, learned Assistant Government Pleader, appeared and submitted that the Departmental Circular dated 8th August, 2005 has been put into abeyance by yet another Official Circular dated 19th September, 2005 issued by the Joint Director of Transport. His further submission is that vide Notification dated 6th July, 2002, the Gujarat Motor Vehicles (First Amendment) Rules, 2002 have been brought into force wherein sleeper designated omnibus has been defined to mean any contract carriage constructed or adapted to carry more than six passengers excluding the driver with a facility of comfortable sleep on berth and in view of the said definition, the whole bus is to be treated as a sleeper designated omnibus and the Department is justified in charging the tax on the full capacity of the buses.