IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 WP(C).No. 34020 of 2008(Y) -------------------------- PETITIONER(S): --------------- SRI. P. REMASH, S/O. SRI. PADMANABHAN, 21, SHANTHI COLONY, PORUR, CHENNAI, PIN 600 116,. BY ADV. SRI.E.P.GOVINDAN RESPONDENT(S): --------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.VIII, COMMERCIAL TAXES, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES DEPARMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 34020 OF 2008 Y ```````````````````````````````````````````````````` Dated this the 9th day of December, 2008 J U D G M E N T Petitioner challenges Ext.P1 notice issued under Section 47(2) of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as “the Act”). A direction is sought to release the vehicle chassis covered by Ext.P5 sale letter to the petitioner unconditionally. A declaration also is sought that the petitioner is not liable to pay tax under the Act. A further direction is sought to permit the petitioner to take back the detained vehicle chassis to Pollachi without payment of any security deposit. 2. Briefly put the case of the petitioner is as follows. Petitioner is a permanent resident of Chennai, not doing any business activities in the State of Kerala and, therefore, not registered under the Act or under any other law. Petitioner purchased an old lorry chassis from M/s.Citicorp Finance (I) Ltd., Chennai for a consideration of Rs.3,30,000/-. The said vehicle chassis was originally purchased by one Bhaskaran, a resident of Tamil Nadu from M/s.HEX Mobiles (P) Ltd., Chennai. Ext.P2 is WPC.34020/08 : 2 : produced as the Certificate of Registration. Ext.P3 is a copy of the Sale Certificate issued in the name of Shri Bhaskaran. Shri Bhaskaran has purchased the vehicle under hire purchase scheme. He had borrowed amounts from M/s.Citicorp Finance (I) Ltd. and created a lien in favour of the financier. Shri Bhaskaran committed default, whereupon the vehicle was seized by the financier and the petitioner purchased the disputed lorry chassis in public auction for Rs.3,30,000/-. Ext.P5 is produced as a sale letter dated 3.11.2008. Petitioner took possession of the vehicle at Pollachi. It is stated, on inspection it was found that many of the parts were replaced by the original owner and the body was in a damaged condition. Petitioner approached the registering authority to transfer the ownership. He was advised to produce the vehicle after repairs and to pay the tax arrears. Petitioner took possession of the vehicle at Pollachi where it was kept by the financier and it was being driven to Kondotty, Malappuram District for repairs. While so, the petitioner was served with Ext.P1 notice. 3. In Ext.P1, it is essentially stated that on verification and enquiry it was understood that the vehicle chassis is coming from WPC.34020/08 : 3 : Tamil Nadu and no documents are attached with it. Further, the chassis has not stopped and entered at the border or enroute check post as is mandatory under Section 46(3) of the Act. As per the statement of the driver, the vehicle chassis has been purchased by one Ummer in Kondotty. In the counter affidavit, it is, inter alia, stated as follows. The petitioner is one Sri. Remash who is not known by name or documents. The chassis was not carrying any permanent registration number. The transportation of the chassis from Tamil Nadu to Kerala is only as an inter-state sale. The value of the chassis is Rs.6 Lakhs as per local enquiry. On verification, it is found that the vehicle has covered only 1914 Kms. as per the meter reading, and that the first registration is also not even complete. The free check up by the manufacturer was also not seen done. It is a new chassis and the transportation of the same is punishable under Sections 47, 69(1) and 46(5) as stated in the Act. It is intended to be sold to somebody else. The driver also stated that the said Ummer is in the field of vehicle exchange and sale. The Department has not received any reply either from the consignor or from the consignee. The story put WPC.34020/08 : 4 : forward by the petitioner that the chassis was sent to Kondotty is utter false. The chassis is in very good condition. The chassis is of 2006 Model. No permission was given by the authorities in Tamil Nadu to transport the vehicle to Kerala. It is not ascertainable whether the petitioner actually owns the goods in question or not. Therefore, the petitioner is not entitled to take back the goods to Tamil Nadu. 4. I heard Sri. E.P.Govindan, learned counsel for petitioner and the learned Government Pleader. Learned counsel for the petitioner would point out that section 47(2) is not attracted as it is only a consignment of goods which are carried in a vehicle or vessel which could be detained under Section 47(2) of the Act. Here, the chassis was being driven. He would further contend that one Sri. Bhaskaran was the original owner and being a used vehicle, the tax payable is only ½ %. Learned counsel for the petitioner submits that the petitioner may be permitted to take back the vehicle to Tamil Nadu. 5. Learned Government Pleader would point out that, as noted in Ext.P1, there were no documents. The vehicle showed WPC.34020/08 : 5 : only a reading of 1914 Kms., and therefore no repair was needed and the ownership of the vehicle is not established. The vehicle did not stop at the check post. He further contended that the chassis would be “goods” and it is covered by Section 47(2) of the Act. He also referred Section 46(4). Learned Government Pleader also points out that the contention of the petitioner that ½ % tax is applicable is not correct. 6. After having considered the facts of the case, I feel that if the petitioner is the owner of the chassis, the petitioner can be permitted to take back the vehicle to Tamil Nadu. Accordingly, writ petition is disposed of directing the 1st respondent to hear the petitioner in support of his case that he is the owner of the vehicle and if it is found that he is the owner of the vehicle, the petitioner shall be permitted to take back the vehicle to Tamil Nadu. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE