BALAKRISHNA TRANSPORT Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) HEARD the learned counsel appearing for the parties.

(2.) IN this writ petition, the petitioner has prayed for quashing the order passed by the respondent imposing penalty under section 15 (1) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. This is being challenged by the petitioner on the ground that at the time when the excavator was purchased in 1995, such vehicles had not been registered by the RTO, apparently, because such vehicles were not being considered as motor vehicles within the meaning of the expression contained in the Motor Vehicles Act. It is the specific case of the petitioner that, at that stage the petitioner had enquired in the office of the RTO for getting the vehicle registered but he was informed that there was no instruction to register such vehicle. The petitioner has contended that for the first time in a decision, reported in (2001)121 STC 614 (Bose Abraham v. State of Kerala), by the Honourable Supreme Court that the excavator would also come within the meaning of expression motor vehicle as defined under Section 2(28) of the Motor Vehicles Act 1988 (Central Act 59 of 1988), and as such, would attract levy under Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. Only after such decision was rendered, the liability to pay the tax arose and therefore, there was no deliberate evasion by the petitioner and the penalty should not have been imposed. It is further submitted that in the absence of without issuing notice as contemplated under Section 15(2), this penalty has been imposed.

(3.) THE contention of the petitioner that levy of tax without following the procedure under Section 15 of Act is illegal and invalid has to be accepted. Section 15 (1) specifically contemplates that such a person must be heard. In the present case, the notice which was issued did not indicate that there was any proposal to levy penalty. THE only question was relating to payability of the tax at that stage. Since no notice had been issued, the question of levying penalty did not arise and on this consideration alone, the writ petition is bound to be allowed.