AUTO TRADING COMPANY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner by means of this writ petition has sought for quashing the assessment order dated 30th August, 1980, passed under rule 41 (7) of the U. P. Sales Tax Rules, for the assessment year 1977-78 (annexure 3 to the writ petition) and order of assessment dated 27th August, 1980, for the assessment year 1976-77 under section 21 of the U. P. Sales Tax Act (annexure 2 to the writ petition) imposing the tax on the turnover of station wagons at the rate of 12 per cent. The petitioner was carrying on the business in motor vehicles, tractors, three wheelers, station wagons, mini buses and automobiles, spares, etc. While passing the assessment order for the assessment year 1976-77 under rule 41 (7) the tax was imposed at the rate of 9 per cent on the turnover of station wagons but subsequently a notice under section 21 of the Act was issued taxing the station wagons at the rate of 12 per cent in view of the decision of this Court in the case of Gopal Enterprises v. Commissioner of Sales Tax 1979 UPTC 1129. In this case what has been held is quoted as under : " That the station wagons sold by the petitioner are liable to be taxed at the rate of 12 per cent plus 1 per cent surcharge. " Similarly, for the assessment year 1977-78 the station wagons were taxed at the rate of 12 per cent on the basis of the aforesaid decision in the case of Gopal Enterprises 1919 UPC 1129. The petitioner being aggrieved as against the said orders of assessment passed under section 21 and rule 41 (7) as aforesaid, has filed the present writ petition for quashing the same. In fact, the controversy involved in the present case, in pith and substance, is the interpretation of the Notification dated 20th May, 1976, relevant portion of which is quoted below : " 6. Notification No. ST-II-2956/x-6 (17)-76 dated 20th May, 1976. ---------------------------------------------------------------------- Description of goods Rate of tax ---------------------------------------------------------------------- 62 (a) Motor car 7 per cent (b) Motor trucks and motor buses, including 9 per cent thereon their chassis and motor bodies built thereon (c) All other motor vehicles including their 12 per cent. " chassis and motor bodies of all shapes and designs (including motor caryans and tankers), whether built on chassis or separately.--------------------------------------------------------------------- According to the petitioner, the assessing authority has not applied his mind as to whether the station wagons should be covered under clause (a) or clause (b) of entry 62 of the said notification. According to the petitioner, what he contends for the first time in this writ petition is that the station wagons can be covered by clause (a) of entry 62 under "motor car". The contention is that irrespective of the shape and size the station wagon is the commercial name of a particular motor car and it continued to be a motor car and is liable to be taxed at the rate of 7 per cent. Motor car may be of different variety, shapes and design which may be used for different purposes. It may be sports car, may be exclusively required for personal use by the passengers, it may be for the purposes of transporting the passengers from one place to another which is commonly known as taxi. Motor car whose capacity is of 9 persons, is treated as the car while the commercial passenger vehicles for carrying on their number of persons are known as buses or omni buses. It has been further contended that in the aforesaid decision of this Court in the case of Gopal Enterprises 1979 UPTC 1129 entry 62 (a) "motor car" has been taken into consideration and not entry 62 (b ). The argument is that the station wagons can be included within the meaning of "motor buses" used in entry 62 (b) of the aforesaid 1976 notification and thus the same could be taxable only up to 9 per cent and not 12 per cent as assessed. In support of the aforesaid contention Sri Bharatji Agrawal appearing for the petitioner relied on various sub-clauses of section 2 of the Motor Vehicles Act, 1939. Reliance was place on section 2 (9), 2 (9-A), 2 (13), 2 (15) and 2 (16) wherein the definition of "heavy goods vehicle", "heavy passenger motor vehicle", "light motor" and "motor car" has been defined. It is not necessary for us to go into the details of the definition given in this Act as for the purpose of property implementing the object of the said Act and the definition given therein would not he of any help in interpreting the aforesaid notification. In any case, any of the definitions given even under the said Act relied by the learned counsel for the petitioner does not include the definition of "station wagons" and for that purpose we have to interpret the said notification in accordance with its meaning under the U. P. Sales Tax Act. For the aforesaid reasons the definition relied by the learned counsel for the petitioner given in the Motor Vehicles Act, 1939, could be of no avail. Next reliance was placed on the dictionary meaning of the words "bus", "motor bus" and "motor car". This reliance was placed to bring the words "station wagon" under entry 62 (b) for the purpose of taxability of station wagons at 9 per cent. Random House Dictionary of the English language defines "bus" as under : Bus : a motor vehicle with a long body equipped with seats or benches for passengers, usually operating as part of a scheduled service line; omnibus. Similarly "motor bus" has been defined as under : " Motor bus" : a passenger bus powered by a motor. " Motor car" has been defined as under : " Motor car" : an automobile, a self propelled car for freight or passenger. In Webster dictionary also the definition of "motor bus" is given as under : " Motor bus" : an automotive omnibus; motor coach. In "the New Oxford Illustrated Dictionary", "motor car" and "motor bus" are defined as "motor driven four wheeled passenger road vehicle". From the aforesaid dictionary meanings we find that they are of no help to us for coming to the conclusion that in any way that the words "station wagon" will fall within the meaning of "motor bus". On the contrary, we find in Random House Dictionary the definition of "station wagon" as under : " Station wagon" : an automobile with one or more rows of folding or removable seats behind the driver and no luggage compartment but an area behind the seats into which suitcases, parcels, etc. , be loaded through a tall gate. We find that in the case of Gopal Enterprises 1979 UPTC 1129 the learned single Judge has held as under : " that the word 'motor car' must be given a restricted meaning. 'station wagons' sold by the assessee, although used by passengers would fall into residuary category of clause (c) of Notification No. ST-II-2956/x-6 (17)-76 dated 20th May, 1976, as they are not vehicles which are commonly used by passengers like the other cars for travelling. Their shape, design and capacity is such as they would not be called motor cars in common parlance. They were rightly held to be taxable at the rate of 12 per cent. " In the impugned order the assessing authority of the present case has followed the decision of this Court as quoted above and has assessed the station wagons at 12 per cent. In the case of British India Corporation Ltd v. Commissioner of Sales Tax 1987 UPTC 394 the Full Bench of this Court has held as under : ". . . . . . . . . . . . . that where words or terms are not defined in Sales Tax Act they have to be understood in their common parlance or as understood by traders in those articles. In this case from the judgment of the Assistant Commissioner (Judicial) it appears that the assessee produced evidence to indicate that cardigans and pullovers sold by the assessee were known in commercial circles as articles of hosiery. " However, no finding was recorded by the assessing authority as to whether cardigans and pullovers sold by the assessee are factually known in commercial circle as articles of hosiery or not. In this view that case was sent back to the Tribunal to decide the aforesaid question. It is this decision which has been relied by the learned Standing Counsel to contend that for the purpose of interpreting the aforesaid notification what is important is as to whether "station wagon" in common parlance is treated to be a "motor car" or "motor buses" or not and in case it does not fail under both entries, it would fall under residuary entry (c ). In the present case the learned counsel for the petitioner confines his case on "station wagon" failing under entry 62 (b) of the aforesaid notification. We find in this case that the assessing authority in both the relevant years in question has not decided this question on the basis of the evidence on record whether "station wagon" in common parlance is to be treated as "motor bus" or not. In view of this, we set aside the assessment order passed as against the petitioner dated 30th August, 1980 under rule 41 (7) for the assessment year 1977-78 (annexure 3 to the writ petition) and also the order dated 27th August, 1980 passed under section 21 of the U. P. Sales Tax Act for the assessment year 1976-77 (annexure 2 to the writ petition) so far as they relate to the tax at the rate of 12 per cent on station wagon and remand this case to the authority concerned with a direction to decide afresh the same after giving opportunity to the parties and permitting them to lead the evidence as to whether the "station wagons" could be treated to be "motor buses" including their chassis and motor bodies built thereon under entry 62 (b) of the aforesaid notification of 1976. This finding will be recorded by the assessing authority without any prejudice of the decision given in the case of Gopal Enterprises 1979 UPTC 1129 so far it affects the petitioner in view of what we have said above. With the aforesaid observations the present writ petition is allowed and the case is remanded to the authority concerned to decide the same afresh. Costs on parties. Writ petition allowed. .