AI Structured Summary
Not yet generated for this judgment
Judgment
D. Murugesan, J.—The petitioner is Anna Transport Corporation Ltd., Salem and it is one of the State Transport undertakings as defined
u/s 2 of the Motor Vehicles Act, 1988. The Petitioner-Transport Corporation is operating a number of stage carriage services in and around
Salem District and the services operated by the Petitioner-Transport Corporation include town, moffusil and express services. Nearly 700 to 800
stage carriages are being operated by the Petitioner-Transport Corporation.
The issue involved in this writ petition is as to refund of tax paid by the petitioner. By virtue of Section 4 (1) of the Tamil Nadu Motor Vehicles
Taxation Act, 1974 (hereinafter referred to as ""the Act""), the petitioner is entitled to make payment of tax either on quarterly, or half yearly or on
annual basis. But, it was the practice that the Petitioner-Transport Corporation used to pay only quarterly tax. The Corporation made request to
the Government to allow them to pay quarterly tax on three monthly instalments. Acceeding to the said request, the Government issued
G.O.Ms.No. 138 Home (Transport) Department, dated 23.4.1991 which is furnished hereunder:
In exercise of the powers conferred by clause (b) of sub-section (1) of section 20 of the Tamil Nadu Motor vehicles Taxation Act, 1974 (Tamil
Nadu Act 13 of 1974), the Governor of Tamil Nadu hereby makes modification in regard to the tax payable in respect of stage carriages/Reserve
Stage Carriages operated by the State Transport Undertakings only, from quarterly/half-yearly basis monthly as a special case. The said
modification for payment of tax monthly shall be valid upto the 31st December, 1991.
The Notification hereby issued shall be deemed to have come into force from the 1st April, 1991.
This order issues with the concurrence of the Finance Department - Vide its U.O. NO. 2116/F6/P/91-2 dated 23.4.1991.
In the above said notification, Stage Carriages/Reserve Stage Carriages operated by State Undertakings alone were exempted from paying
quarterly/half-yearly tax and was allowed to pay tax on monthly basis. Though initially the said notification for payment of tax on monthly bais was
valid upto 31.12.1991, periodically it was extended till such request was rejected by the Government by their Proceedings No.
120686/TRANSPORT-I/2002-5 dated 20.2.2003. According to the petitioner, the payment of quarterly tax was made on monthly instalment and
the tax for the month of May, 1992 was also paid. Since the vehicle was not operated for the period from 1.5.1992 to 31.5.1992 for which the
tax was paid, invoking Section 13 of the Tamil Nadu Motor Vehicles Taxation Act, the petitioner applied for refund of tax. The said request was
rejected by the Regional Transport Officer in his Order dated 6.11.1992. The petitioner preferred an appeal before the Deputy Transport
Commissioner, Salem who also rejected the same on 16.8.1993. Further revision to the Regional Transport Commissioner, Chennai was also
rejected by the Order dated 11.1.1995. All these orders are challenged in this writ petition, with the consequential relief for a direction to the
respondents to refund the tax.
I have heard the learned counsel for the petitioner as well as the Special Government Pleader, Mr. P. Chandransekaran. A counter affidavit has
also been filed justifying the impugned orders. According to the Petitioner-Transport Corporation, it is entitled to pay quarterly, half-yearly or
annual tax in terms of Section 4(1) of the Act. Only as a concession, the Government permitted the Petitioner-Transport Corporation to pay
quarterly tax in three monthly instalments. Therefore, when the Petitioner-Transport Corporation is paying quarterly tax in three monthly
instalments, the benefit of refund of tax as provided u/s 13 of the Act ought to have been extended as the petitioner did not run the vehicle in
question for the month of May, 1992 for which the tax was already paid.
However, Mr. P. Chandrasekaran, the learned Special Government Pleader appearing for the respondents submitted that what was paid by the
petitioner is only monthly tax. Refund of amount is contemplated only in the event of the Petitioner-Transport Corporation making payment on
quarterly, or half-yearly or annually u/s 13(1) of the Act. In the absence of the same, the Petitioner-Transport Corporation is not entitled to the
refund.
For the disposal of the writ petition, Section 4(1) and 13 of the Motor Vehicles Taxation Act, 1974 are relevant and they are as follows:
Section 4(1): The tax levied under this Act shall subject to the provisions of sub-section (1-A), be paid in the manner prescribed by the registered
owner or by any other person having possession or control of the motor vehicle, at his choice, either quarterly, half-yearly or annually, on a licence
to be taken out by him for that quarter, half-year or year, as the case may be.
(1-A) Notwithstanding anything contained in sub-section(1),-
[(a) in respect of the motor vehicles specified in item (A) of the Second Schedule, and in Part-I of the Third Schedule, at the time of its registration,
a life time tax shall be paid at the rates specified in item (A) of the Second Schedule or in Part-I of the Third Schedule, as the case may be, on a
licence to be taken out for the life time of such vehicles.
(b) In respect of motor vehicles specified in item (B) of the Second Schedule and in Part-II of the Third Schedule, the tax shall be paid either
anually at the rates specified in the First Schedule or for the life time of such vehicles at the rates specified in item (B) of the Second Schedule or in
Part-II of the Third Schedule, as the case may be, on a licence to be taken out for such vehicles for that year or for the life time, as the case may
be; and]
c) in respect of motor vehicles specified in clauses 6 and 7 of the First Schedule, the tax shall be paid anually at the rates specified therein on a
licence to be taken out for that year.
Explanation:- The tax for a half-yearly licence shall not exceed twice and the tax for an annual licence shall not exceed four times the tax for a
quarterly licence. [The Government may, by notification, grant, subject to such condition as may be specified, a suitable rebate in case of half-
yearly, annual and life-time licences.]
[(1-B) Notwithstanding anything contained in sub section (1), in the case of motor vehicles specified in class 5-A of the First Schedule, in respect
of which permits are granted under the Motor Vehicles Act, 1988 (Central Act 59 of 1988) for a period of five years, the tax shall be paid at the
rates specified in the First Schedule, for five years at a time, at the time of issue of such permits:
Provided that in respect of the motor vehicles specified in class 5-A which are already covered by permits, the tax shall be paid anually till the
renewal of such permits.]
[(1-C) Notwithstanding anything contained in sub-section (1), in the case of motor vehicles specified in class of the First Schedule in respect of
which permits are granted under the Motor Vehicles Act, 1988(Central Act 59 of 1988) for a period of five years, the tax under this Act may be
paid by the registered owner or by any person having possession or control of the motor vehicle, at his option, at the rates specified in the First
Schedule for five years at a time, at the time of issue of such permit.]
Section 13. Refund of tax:- (1) Where the tax for any motor vehicle has been paid for any quarter, half year, year or the life time and the vehicle
has not been used on any public road during the whole of that quarter, half year, year or life time or a continuous part thereof not being less than
one month, a refund of the tax at such rates as may, from time to time, be notified by the Government, shall be payable on an application made
within such period as may be prescribed and subject to such conditions as may be specified in such notification.
(1-A) Where a life time tax for any motor vehicle has been paid and the registration of the vehicle has been cancelled for any reason whatever or
the vehicle has been removed to any place outside the State of Tamil Nadu on account of transfer of ownership or change of address, a refund of
the tax at such rate as may, from time to time, be notified by the Government shall be payable on an application made within such period, as may
be specified in such notification:
Provided that in the case of removal of a vehicle to any place outside the State of Tamil Nadu on account of transfer of ownership or change of
address, the refund of tax shall be considered only after the receipt of proof for having effected such transfer of ownership or change of address.
(2) Where any tax is paid by mistake or in excess, the tax so paid or collected shall, on an application made within such a period, be refunded to
such person in such manner and subject to such conditions as may be prescribed.
(3) Where any penalty is paid or collected-
(a) by mistake, or (b) in excess of, c)when such penalty is not due, the penalty so paid or collected shall be refunded to such person, in such
manner and subject to such conditions as may be prescribed.
[(4) The amount so refundable in respect of a motor vehicle under this Section may, on an application made in this behalf, be adjusted towards the
amount of tax payable for such vehicle, under this Act for any subsequent period].
The petitioner being a Stage Carriage Transport, though public transport undertaking, is liable to pay tax on quarterly, half-yearly or annually.
Excepting the said provision, I do not find any other provision entitling the petitioner to make payment on monthly basis. The Government Order
which is sought to be relied upon by the petitioner is G.O.Ms.No. 138 dated 23.4.1991.
Though in the said notification, the transport undertakings, are permitted to pay tax on monthly basis, such payment, in my considered view,
cannot be construed as payment of monthly tax as no such entitlement for payment of monthly tax is contemplated under the provisions of the Act,
more particularly u/s 4(1) of the Act. In the said circumstances, the notification dated 23.4.1991 should be read as one giving exemption to the
said transport undertaking in payment of quarterly tax on monthly instalment basis u/s 20 of the Act. The said section reads as under:
Exemptions:- The Government may, by notification and subject to such conditions, if any, as the Government may specify in such notification,-
(1) make an exemption, reduction in rate or other modification in regard to the tax payable-
(a) by any person or class of persons, or
(b) in respect of any motor vehicle or class of motor vehicles or motor vehicles running in any particular area; and
(2) cancel or vary such exemption, reduction or other modification.
A notification with respect to matters specified in clause (1) may be issued so as to have retrospective effect from a date not earlier than the 1st
April, 1974"".
On reading of the section, it is apparent that the Government is only empowered to exempt the payment of tax on quarterly, half-yearly or anually
or life empting the operators to pay such tax in monthly basis. Merely because the petitioner is paying the quarterly tax on three monthly instalment
basis that will not alter the character of the payment of tax. It is also to be noted that the provisions of Act require the operators including the
petitioner-transport Corporation only to make the payment of tax on quarterly, half-yearly or annually. The Government is not empowered by way
of notification to amend Section 4(1) of the Act in permitting the transport Corporation alone to pay monthly tax.
Viewing from that angle, it cannot be construed that the notification which has been relied upon by the petitioner was one amending Section 4(1)
of the Act thereby entitling the Petitioner-Transport Corporation to pay monthly tax. In the absence of any such interpretation, the said notification
should be considered only as a concession given by the Government to the Petitioner-Transport Corporation to pay quarterly tax in three monthly
instalments. When once that conclusion is arrived at, the petitioner should be considered as a Corporation paying only quarterly tax on three
monthly instalment basis. The operator who pays the tax on quarterly or half-yearly or annually or life tax is entitled to refund of tax if the vehicle
for which the tax was paid, was not put on road for more than one month. It is not disputed that the petitioner had not put the vehicle bearing
Regn. No. TN 27/N-0070 for a period covering from 1.5.1992 to 31.5.1992.
From the impugned orders, it is seen that the petitioner is not complied with Rule 11 of the Tamil Nadu Motor Vehicles Taxation Rules, 1974
which is extracted hereunder:
Rule 11. Refund of tax:- In the case of a motor vehicle for which tax has been paid for any quarter, half year or year or life-time, as the case may
be, but the vehicle has been used on any public road for a continuous period of not less than one month, within the above period, refund of tax
paid for such period of non-use shall be made at the rates specified below subject to the provisions contained in rules 12, 14 and 15:- .....
Rule 14. (a) Taxation licence shall be surrendered to the Regional Transport Officer concerned within seven days from the date of stoppage of the
vehicle within a reasonable period thereafter.
(b) The non-use of the vehicle shall be intimated in writing to the Regional Transport Officer concerned by Registered Post with acknowledgment
due together with reasons for such non-use and details of the place where the vehicle is garaged within seven days from the stoppage of the vehicle
or within a reasonable period and shall thereafter surrender,-
(i) in the case of a transport vehicle, the Certificate of Registration and permit; and
(ii) where the documents are seized or retained by any authority, a certificate obtained from the authority which effected the seizure or retention of
such documents.
Provided that the conditions laid down in this rule shall not apply to a motor vehicle belonging to a State Transport Undertaking subject to the
condition that it shall produce an undertaking along with the application for refund that it will produce the documents referred to therein before the
disposal of the refund application.
The condition for refund, viz., tax should have been paid only for any quarterly/half-yearly/annually or for life time. Excepting this, the
Petitioner-Transport Corporation has complied with all other conditions for refund of tax. In view of the fact that the petitioner has made the
payment of tax quarterly but in three monthly instalment basis, it is entitled to refund of tax as requested.
In fact, when the same question came up for consideration before me at the instance of the same, Anna Transport Corporation impleading the
same respondents, I have held that the Transport Corporation is entitled to refund of tax for the period for which the vehicle was not operated for
more than a month in W.P. No. 17053 of 1994 and 17054 of 1994 by order dated 19.6.2001.
Accordingly, the writ petition is allowed and the impugned orders are set aside. No costs. Consequently, there will be a direction to the
respondents to refund of tax paid by the Petitioner-Transport Corporation for the period from 1.5.1992 to 31.5.1992 in respect of the vehicle
bearing Regn. No. TN 27/N-0070.