NISAMANI DEI Vs. REGIONAL TRANSPORT OFFICER

JUDGEMENT

(1.) THE Petitioner is the owner of a truck. On 7th of July, 1965 she filed an application before the S.P. Dhenkanal, that the vehicle would be off the road for the third quarter of 1965. Along with the application the Registration Certificate was surrendered. No subsequent application was filed that the vehicle would be off the road in future. On 23rd of March, 1966 a notice was issued by the Regional Transport Officer (R.T.O.) calling upon the Petitioner to pay the tax for the period 1 -10 -1965 to 31 -3 -1966 and to show why penalty should not be imposed under Section 12 -A, of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (Bihar and Orissa Act II of 1930) (herein after to be referred to as the Act). On 1st April 1966 causes was shown that the vehicle was still off the road as the Registration Certificate was lying in the Police Office. The R.T.O. by a Demand Notice dated 16 -5 -1967 called upon the Petitioner to pay tax at the rate of Rs. 450/ - for the 4th quarter of 1965 and 1st quarter of 1966, and penalty at the rate of Rs. 900/ - and Rs. 1800/ - for the 4th quarter of 1965 and let quarter of 1966 respectively. An appeal against this order was dismissed on 21 -7 -1967. The writ application has been filed challenging the imposition of penalty. Mr. Mohanty does not dispute that the Petitioner is liable to pay tax of Rs. 900/ - as imposed.

(2.) THE only question for consideration is whether the Petitioner is liable to pay penalty of Rs. 2, 700/ -. Reliance is placed on Mr. Mohanty on Section 12 -A, of the Act which provides for penalty for failure to pay tax. Explanation (1) to Section 12 -A(1) lays down that for the purposes of that sub -section the expression "due date of payment" shall be the date on which the vehicle had started being used without the tax having been paid in accordance with the provisions of the Act. It is contended that before any penalty can be imposed the taxing authority must record a finding that the vehicle had started being used. Admittedly, in this case no tax bad been paid. Mr. Mohapatra, the learned Standing Counsel, concedes that there is no finding that the vehicle bad started being used on the road. In the absence of such a finding the explanation has no application and accordingly no penalty can be imposed. This conclusion is arrived at on a plain reading of the language used in explanation (1). The same view bad been taken by a Division Bench of this Court in Bijoy Modi v. R.T.O. Dhenkanal O.J.C. No. 337 of 1967 -D/11 -11 -1970, which was assailed before us by Mr. Mohapatra as having taken a wrong view in law. We are clearly of opinion that the Division Bench took the correct view and there is no necessity of making a reference to 80 larger Bench.

(3.) ON the aforesaid analysis, the imposition of penalty to the tune of Rs. 2,700/ - must be quashed. The imposition of tax must however stand. The writ application is allowed in part; but in the circumstances parties to bear their own costs.