IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4563 of 2009 BALDEO CHAUDHARY, SON OF LATE MITHU LAL CHAUDHARY, R/O AT & P.O. PILKHI, P.S.SAKRA, DISTT- MUZAFFARPUR…………………………….….PETITIONER Versus 1. THE STATE OF BIHAR 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE JOINT STATE TRANSPORT COMMISSIONER, TRANSPORT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE DISTRICT TRANSPORT OFFICER, MUZAFFARPUR……………………………RESPONDENTS ----------- For the petitioner:- Mr. Randhir Kumar Singh, Adv Mr. Sanjay Kumar Pandey, Adv For the State :- Mr. Siddhartha Prasad, AC to AAG-9 ----------- 06/ 30-Nov-2010 Heard the parties. 2. Petitioner has preferred this writ petition seeking quashing of order dated 15th January 2009 (Annexure-6), passed by learned Member, Board of Revenue, Bihar, Patna in Tax Revision Case No. 49/2008 whereby the learned Member has affirmed the order dated 12.08.2008 passed by learned Secretary, Transport Department, Bihar in Tax Appeal No.08/2008 and also order of the Joint State Transport Commissioner, Bihar, Patna dated 15.04.2008 (Annexure-4) passed in Pratyapan Abhilekh Sankhya- 394/02. The effect of the aforesaid orders is to refuse the 2 prayer of the petitioner for exemption of road tax and additional tax in respect of petitioner’s bus bearing Registration No. BR-06A/9753 for the period 30th July 2001 to 20th October 2003 which is said to be equivalent to Rs. 53,970/- excluding penalty. 3. From the materials on record including the declaration by the petitioner made at the time of surrender of the bus contained in Annexure-1, it is clear that the vehicle in question did not have any temporary or permanent permit. Besides using this fact as a ground for rejecting the petitioner’s prayer for exemption the Original Authority vide Annexure-4 assigned two more reasons, namely, certificate of the garage where the vehicle was parked for repair was not submitted and the report of M.V.I relating to repair and fitness of the vehicle in question was also not submitted. 4. Such order under Section 17 of the Bihar Motor Vehicles Taxation Act, 1994 (hereinafter referred to as ‘the Act’) was challenged by the petitioner in appeal before the Secretary, Transport, Bihar, who on the basis of further materials furnished by the petitioner was satisfied that the certificate of the garage where the 3 vehicle was parked and the report of the M.V.I relating to the repair and fitness of the vehicle had been obtained and submitted but he rejected the appeal and the prayer of the petitioner for exemption on the ground that on the date of surrender, the vehicle did not have a valid permit. After considering all the materials in exercise of revisional power, the learned Member, Board of Revenue also dismissed the revision application preferred by the petitioner by the impugned order dated 15.01.2009 contained in Annexure-6 on the ground that the vehicle did not have valid permit on the date of surrender. 5. The stand of the authorities under the Act appears to be based upon contents of Section 17 of the Act which runs as follows:- “17. Prior intimation of a temporary discontinuance of use of a vehicle- (1) Whenever any motor vehicle becomes incapable of use due to disability caused by mechanical breakdown or litigation or due to other causes prescribed by State Government for any period more than a month, the owner shall, on or before the date of expiry of the term for which the tax has been paid, furnish to the taxing officer an undertaking duly signed and verified in the prescribed form and specifying the period aforesaid and the place where the motor vehicle is to be kept along with the current registration certificate, fitness certificate, and tax token, and 4 such other particulars as may be prescribed and shall from time to time by furnishing, further undertaking give prior intimation to the concerned taxing officer of the extention, if any, of the said period and the changes, if any of the place where the motor vehicle shall be kept. The owner shall also surrender the permit of the vehicle to the Transport Authority which has granted permit to it with intimation to the taxing officer; Provided that no such undertaking shall relate to a period exceeding six months at a time. (2) if at any time during the period covered by an undertaking as aforesaid the motor vehicle is found being used or is kept at place in contravention of any such undertaking such vehicle shall for the purpose of this Act, be deemed to have been used through the said period without payment of tax. (3) In the absence of any undertaking delivered under sub-section (1) every motor vehicle liable to pay tax under this Act shall be deemed to have been used or kept for use within the State. 6. The issue to be decided in this proceeding is whether the requirement that the owner shall also surrender the permit of the vehicle to the Transport Authority which has granted permit to it with intimation to the taxing officer would have the effect of debarring consideration of claim for exemption in respect of those commercial vehicles which may not have valid permit at the time of surrender. This issue has to be decided in the light of purpose of various safeguards mentioned in 5 Section 17 which clearly are meant to ensure that all the relevant papers relating to the vehicle are surrendered and the fact that the vehicle is parked for repair in a garage etc. is duly verified so that there may not be any clandestine use of the vehicle so as to defeat the interest of revenue by use of the vehicle during the period of surrender for which exemption is sought. 7. In case, where a bus does not have any valid permit granted by the State Transport Authority or the Original Transport Authority, there cannot be any question of the owner surrendering the permit of the vehicle to the concerned transport authority. Hence, once the owner makes a declaration and the authorities are satisfied that the vehicle did not have any valid permit, there would be no further requirement upon the owner to surrender a non-existent permit. And on that account alone a valid surrender of the vehicle cannot be disallowed so as to burden the owner with road tax and additional tax when all enquiries disclose that the vehicle was actually surrendered and parked for the purpose of repair. 8. So far as the facts of the case are concerned, 6 we have noticed that Annexure-1 mentions that the vehicle did not have any temporary or permanent permit but still we remand the matter to the Original Authority, the Joint State Transport Commissioner, Bihar, Patna to consider the claim of the petitioner afresh in accordance with law and in the light of observations and clarifications made above at an early date and in any case within six weeks from the date of production/communication of a copy of this order. 9. It is made clear that the impugned orders shall not stand in the way of afresh decision by the learned Joint State Transport Commissioner who will consider the only ground for refusing the prayer of the petitioner in the light of observations made above and decide the issue as per law. 10. The writ petition is allowed to the aforesaid extent. No cost. perwez (Shiva Kirti Singh, J.) (Dr. Ravi Ranjan, J.)