LOKENDER KOTHARI Vs. PROHIBITION EXCISE & TAXATION COMM.- CUM- REVISIONAL PROHIBITION EXCISE & TAXATION COMM.- CUM- REVISIONAL

JUDGEMENT

(1.) Whether penalty could be levied under Sec. 9(4) of the Punjab Passengers and Goods Taxation Act, 1952 (hereinafter called the Act) for the period during which the recovery of tax had been stayed by an order of the court, is the short question which arises for determination in this petition filed under Article 226 of the Constitution.

(2.) Facts of the case are these. Lokender Kothari of Udaipur is the petitioner before us. He holds All India Tourist permits covering several States including Rajasthan, Haryana and Delhi. He was at the relevant time operating two 35 -seater deluxe buses carrying passengers through the State of Haryana from Udaipur to Delhi and back. These buses would enter Haryana at Jaisinghpur Khera border in Rewazi district leaving Haryana territory at Sirhol/Dundahera border in Gurgaon district and the return by the same route, thus, covering a distance of 83.2" kilometres one side in Haryana. Passenger tax is leviable in the State of Haryana under the Act at the rate of 60% on the value of the fare collected from all the passengers carried by a motor vehicle. In the present case, the State Government has fixed the fare at 34 paise per passenger per kilometer and passenger tax becomes payable when a motor vehicle enters Haryana territory. Since the petitioner carried passengers through the State of Haryana, he was called upon to pay passenger tax at the aforesaid rate. On receipt of notice from the respondents he filed a writ petition in the Rajasthan High Court at Jodhpur CWP No. 3646 of 1996. The High Court by its interim order dated 14.10.1996 restrained the State of Haryana from imposing any passenger tax on the vehicles of the petitioner. It is common case of the parties that the writ petition was dismissed by that court on 4.8.1997 for want of territorial jurisdiction. The stay order granted by the High Court, thus, remained in operation from 14.10.1996 to 4.8.1997. Since the petitioner had not paid the tax for this period the assessing authority detained his buses at Gurgaon. By order dated 20.2.1998 the assessing authority determined the tax liability of the petitioner for the period from 14.10.1996 to 25.8.1997 and created a demand of Rs. 1,84,376/ - by way of passenger tax and penalty in a sum of Rs. 1,60,586/ - was also imposed under Sec. 9(4) of the Act for the undisclosed trips during the aforesaid period. Feeling aggrieved by this order, the petitioner filed an appeal before the Joint Excise and Taxation Commissioner, Faridabad who dismissed the same on December 22, 2000. A revision petition was thereafter filed which, too met the same fate. Hence this writ petition.

(3.) The petitioner challenged his liability to pay the tax right up to the revisional authority but having failed he deposited the tax. The tax as levied by the assessing authority is not under challenge before us. The only challenge that has been made in this writ petition is to the power of the assessing authority to levy penalty under Sec. 9(4) of the Act. This Sec. reads as under;