IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 29408 of 2010(A) -------------------------- PETITIONER(S): --------------- JOHNSON, S/O.POULOSE, THAIVALAPPIL HOUSE, KOTTANALLUR, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.G.PRABHAKARAN RESPONDENT(S): --------------- 1. THE REGIONAL TRANSPORT OFFICER/MOTOR VEHICLE TAXATION OFFICER, THRISSUR-680001. 2. ASST. REGISTERING AUTHORITY (MOTOR VEHICLES, IRINJALAKKUDA), THRISSUR DISTRICT. 3. THE DEPUTY TRANSPORT COMMISSIONER, CENTRAL ZONE (1), THRISSUR-680003. 4. THE TRANSPORT COMMISSIONER, TRANSPORT BHAVAN, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29408 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE RC PARTICULARS EXT.P2 : COPY OF THE MEMO DTD. 27.3.2009 EXT.P3 : COPY OF THE APPEAL MEMORANDUM DTD.23.5.2009 EXT.P4 : COPY OF THE ORDER DTD.10.7.2009 EXT.P5 : COPY OF THE REVISION PETITION DTD.15.9.2009 EXT.P6: COPY OF THE ORDER DTD.4.6.2010 RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.29408 of 2010-A ---------------------------------------- Dated this the 23rd day of June, 2011. J U D G M E N T A demand raised through Ext.P2 memo for payment of differential amount of tax with respect to stage carriage vehicle bearing No.KL/7 AK 6939, is the subject matter involved in this writ petition. The vehicle in question was purchased by the petitioner and registration of the vehicle was transferred into his name, with effect from 1.1.2006. The 1st respondent found that the vehicle is having wheel base of 519 CM; and it should have minimum seating capacity of 48 in all, whereas it was found that the vehicle was fitted only with 39 seats and the petitioner was paying tax only at a reduced rate of Rs.29,910/- per quarter instead of the tax amount of Rs.24,900/- due. Hence the petitioner was directed to make payment of the differential amount due for the period from 1.4.2007 to 30.6.2009. 2. The petitioner had challenged the demand raised under Ext.P2 in appeal filed before the 3rd respondent, W.P(C) No.29408 of 2010-A 2 which was dismissed through Ext.P4 order, holding that demand is made based on an escaped assessment, which is coming within the purview of Section 26 of the Kerala Motor Vehicles Taxation Act. Eventhough further revision was filed before the 4th respondent the same was also dismissed confirming the view taken by the authorities below, as per Ext.P6 order. 3. Learned counsel for the petitioner raises a contention that, the demand for payment at the enhanced rate with retrospective effect is not sustainable since the petitioner is not liable for payment of tax amount only at the rate which is endorsed in the registration certificate. The question raises as to whether enhanced rate can be collected against the endorsement contained in the registration certificate in view of Rule 269 of the Kerala Motor Vehicles Rules. The said question now stands covered through a decision of the Division Bench of this Court in Shiju V. Regional Transport Officer (2010(4) KLT 848). In the said decision it was held that the W.P(C) No.29408 of 2010-A 3 authority can recover tax at the increased rate based on the seating capacity only from the date on which the R.T.O directed enhancement of seating capacity, and not before. It is held that before demanding the differential tax, endorsement of seating capacity in the R.C. Book well as in the permit and corresponding endorsement of tax in the R.C Book have to be made, in tune with Rule 269. It is further observed that retrospective enhancement of seating capacity in the permit is not possible and hence retrospective demand of tax on the basis of the enhanced seating capacity is also not possible. 4. In view of the legal position settled as above, I am of the view that demand raised through Ext.P2 for payment of tax for the period from 1.4.2007 to 30.6.2009 is not sustainable. Therefore, Ext.P2 memo which was confirmed through Exts.P4 and P6 orders are hereby quashed. The writ petition is allowed accordingly. 5. However, it is made clear that this will not prevent the authorities from directing enhancement of W.P(C) No.29408 of 2010-A 4 seating capacity and making endorsement in the registration certificate in accordance with such order. If any such enhancement is effected, the competent authority will be entitled to realise tax based on such enhancement on a prospective basis. C.K.ABDUL REHIM JUDGE ab