IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 W.A.No.2933 of 2007(D) ---------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.7656/2004 DATED 1-9-2006 .................... APPELLANTS/RESPONDENTS 1 TO 5:- -------------------------------------------------------- 1. THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, MALAPPURAM. 2. THE DEPUTY TRANSPORT COMMISSIONER, CENTRAL ZONE-1, THRISSUR. 3. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. 4. THE VILLAGE OFFICER, MALAPPURAM. 5. THE TAHSILDAR, REVENUE RECOVERY, MANJERI, MALAPPURAM DISTRICT. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. RESPONDENTS/PETITIONER & ADDITIONAL 6TH RESPONDENT:- ---------------------------------------------------------------------------------------------- 1. N.ABDUL AZEEZ, LAVANYA TOURS AND TRAVELS, DOWN HILL, MALAPPURAM. 2. DISTRICT TOURISM PROMOTION COUNCIL, MALAPPURAM. R1 BY ADV.SMT.SUMATHY DANDAPANI (SENIOR ADVOCATE) & ADV. SRI.MILLU DANDAPANI. R2 BY ADV.SRI.P.RAVINDRAN (SENIOR ADVOCATE) & SRI.ANIL SIVARAMAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu, C.J. & A.K.Basheer, J. ---------------------------------------------- W.A.No.2933 of 2007 ---------------------------------------------- Dated, this the 7th day of August, 2008 JUDGMENT H.L.Dattu,C.J. The Revenue, being aggrieved by the orders passed by the learned Single Judge in W.P.(C).No.7656 of 2004 dated 1.9.2006, is before us in this Writ Appeal. 2. The Revenue, at the time of hearing of the Writ Appeal, would raise the following questions of law for our consideration and decision: Firstly, whether, having found that the omission of the petitioner in not keeping the vehicle in the notified place, the learned Single Judge was justified in slashing down the tax liability made under the provisions of the Kerala Motor Vehicles Taxation Act, 1976, (“Act” for short)? Secondly, whether, under the Act, a writ Court can quantify the tax liability and direct the assessee to pay only that amount than what was quantified and demanded by the authorities under the Act? 3. In order to answer the aforesaid two questions of law canvassed by the learned counsel appearing for the Revenue, in our view, the facts in brief requires to be noticed. They are as under: 4. The first respondent herein was the owner of vehicle, bearing registration No.KL-10/E 4200. The vehicle had a regular permit. The owner of the vehicle, in order to claim exemption from W.A.No.2933 of 2007 - 2 - payment of tax under the Act, had filed Form-G declaration before the authority under the Act, inter alia, claiming exemption for the period from 1.1.2001 to 30.9.2002. The authority, after considering the application, in fact, had granted the exemption as provided under the Act. 5. After verification and inspection of the notified place, where the petitioner had stated in Form 'G' that the vehicle in question would be kept, and since the vehicle was not found in the notified place, the assessing authority has now quantified the tax liability for seven quarters, viz., from 1.1.2001 to 30.9.2002. 6. The aforesaid order had been called in question by the owner of the vehicle by filing an appeal before the first appellate authority. The first appellate authority has also concurred with the finding of the assessing authority. 7. Aggrieved by the orders passed by the first appellate authority, the owner of the vehicle had preferred a revision petition before the Transport Commissioner and the said revision petition came to be rejected by the Transport Commissioner by its order dated 21.2.2004. 8. Aggrieved by these three orders, the owner of the vehicle has filed a writ petition No.7656/2004 before this Court. 9. At the time of hearing of the writ petition, the learned Single Judge had called for the entire records from the authorities under W.A.No.2933 of 2007 - 3 - the Act and, the learned Government Advocate, who appeared before the learned Single Judge, had produced the records. After perusal of the records, the learned Single Judge has come to the following conclusion: “However, I find petitioner's conduct is not natural because the records show that most of the time petitioner's vehicle was under G Form and on several occasions even outside the period referred to herein, the petitioner's vehicle was not seen in the place of garage during period when exemption was claimed by the petitioner filing Form G. In other words, disallowance of Form G furnished by the petitioner for other periods is also quite common. Therefore, use of the vehicle during period for which exemption was claimed appears to be not unusual with the petitioner”. 10. Section 3 of the Act is the charging provision. Under this provision, a tax shall be levied on every motor vehicle used or kept for use in the State, at the rate specified for such vehicle in the Schedule. Section 5 of the Act provides for claiming of exemption from payment of tax. The said provision is as under: “5. Exemption from tax.- (1) In the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer from whom the W.A.No.2933 of 2007 - 4 - endorsement of tax has been obtained, that such vehicle would not be used for such period and thereupon, the registered owner or such other person shall not be deemed to have used or kept for use the vehicle for such period, and no tax shall be payable in respect of such vehicle for such period. (2) Nothing in sub-section (1) shall exempt a person from liability to pay tax in respect of a motor vehicle, if, on verification, it is found that the motor vehicle has been used during such period or any portion thereof. (3) Notwithstanding anything contained in sub-section (1), in an appeal under section 23 or a revision under Section 24, the burden of proving that a motor vehicle has not been used during any period shall be on the registered owner or the person having possession or control of the motor vehicle, as the case may be”. 11. In order to take the benefit of Section 5 of the Act, the Legislature has prescribed a particular procedure by framing the Kerala Motor Vehicles Taxation Rules. Rule 10 of the Rules provides for filing of Form-G before the authorities for claiming grant of exemption from payment of tax under the Act for the period during which the vehicle shall not be used on the road by the owner of the vehicle. One of the columns in Form-G specifically provides, that the owner of the vehicle is expected to inform the authority under the Act the place of garage of the vehicle during the period of exemption claimed. W.A.No.2933 of 2007 - 5 - 12. The authorities under the Act, after inspection of the place where the vehicle was supposed to have been kept, have come to the conclusion that the vehicle in question was not found at the time of inspection in the notified place in Form-G and, therefore, have drawn a presumption that the vehicle must have been used on the road. Coupled with that, they have also noticed that the vehicle was used on the road on couple of occasions during the period for which exemption was claimed in Form-G. 13. The learned Single Judge, after going through the entire records, has come to the conclusion that the vehicle was used on the road during the period when exemption was claimed under the Act, by filing Form-G. The learned Single Judge observed that the exemption from payment of tax under the Act can only be claimed when the vehicle is not used on the road and not otherwise. Having come to that conclusion on facts, in our opinion, the learned Single Judge was not justified in modifying the orders passed by the authorities under the provisions of the Act. 14. Time and again the Courts have observed, that, this Court, in exercise of its powers under Articles 226 and 227 of the Constitution, is not expected to meddle with the quantification of a tax liability made by an authority under a statute. If, for any reason, the Court W.A.No.2933 of 2007 - 6 - has come to the conclusion that the quantification that is made by the authorities is either erroneous or contrary to the statutory provisions, the order requires to be set aside by this Court or in the alternative, the matter requires to be remitted back to the authorities to pass a fresh order in accordance with law and at any rate, in our opinion, the Court, having come to the conclusion that there is violation of the conditions of the exemption, ought not to have meddled with the quantification of the tax liability made by the authorities under the Act by slashing down the quantified tax liability. The law on this issue is well settled. The courts have observed that under Article 226 of the Constitution, this court cannot, and also should not, substitute its decision to that of the competent authority under the Act. We need not have to burden this judgment by quoting all those decisions. In that view of the matter, we are of the firm opinion that the learned Single Judge was not justified in reducing the tax liability from a sum of Rs.3,27,950/- to Rs.1,63,795/-. 15. Accordingly, we pass the following: Order (i) The Writ Appeal is allowed. (ii) The impugned order passed by the learned Single Judge, in reducing the quantified tax liability, is set aside. (iii) We confirm the orders passed by the authorities under the W.A.No.2933 of 2007 - 7 - Act, including the orders passed by the Transport Commissioner dated 21.02.2004. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge