IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH APRIL 2008 / 29TH CHAITHRA 1930 WP(C).No. 7749 of 2008(V) ------------------------------------- PETITIONER: ------------------- K.SURENDRAN S/O.KUMARAN, AGED 54 YEARS,SIJU NIVAS,, THEVALAPPURAM P.O.,PUTHOOR, KOTTARAKKARA. BY ADV. SRI.BINOY VASUDEVAN. RESPONDENTS: ------------------------ 1. THE JOINT REGIONAL TRANSPORT OFFICER, KOTTARAKKARA. 2. DEPUTY TAHSILDAR, KOTTARAKKARA. 3. THE VILLAGE OFFICER, PUTHOOR. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2008, THE COURT ON 18/04/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 7749 of 2008 ------------------------------------- Dated: APRIL 18, 2008 JUDGMENT Petitioner is the registered owner of a goods carriage bearing registration No.KL-7/Q 4660. According to the petitioner, he purchased the vehicle with effect from 21.4.1997 and thereafter applied and obtained Ext.P2, goods carriage permit, which was issued by the 1st respondent and valid for the period 30.5.1997 to 29.5.2002. It is stated that there were some disputes with the financier and hence the vehicle could not be operated. According to the petitioner, tax was paid upto 30.6.2001, Ext.P2 permit expired on 29.5.2002 and the certificate of fitness also expired on 24.5.2002. Petitioner admits that due to his ignorance, 'G' Form was not filed. 2. In 2007, petitioner is stated to have settled his disputes with the financier and submitted Ext.P3, requesting that he may be permitted to remit the tax at the non-transport vehicle rate, for the period when the vehicle was not covered by any permit. According WP(C) 7749/08 Page numbers to the petitioner, immediately on receipt of Ext.P3 request, the 1st respondent issued Ext.P4 demand notice. Since Ext.P4 demand was issued without considering or giving reply to Ext.P3, he approached this court by filing WP(C) 34392/2007, which was disposed of by Ext.P5 judgment directing consideration of Ext.P3. Accordingly, his request was considered and by Ext.P6, petitioner was informed that since he had not filed prior intimation under sec.5 of the Kerala Motor Vehicles Taxation Act, his request for exempting him from payment of tax cannot be considered. It was also stated in Ext.P6 that there is no provision in the Taxation Act to realise tax for a goods carriage vehicle at non-transport vehicle rate. Soon thereafter, recovery proceedings were initiated and Ext.P7 was issued. It is challenging Exts.P6 and P7, the writ petition has been filed. 3. Petitioner contends that as the certificate of fitness expired on 24.5.2002 and the permit expired on 29.5.2002 and as the vehicle was not used after 30.6.2001, there is absolutely no justification for making him liable of payment of tax at the rate as applicable to a goods carriage vehicle. It is his contention that WP(C) 7749/08 Page numbers under sec.56 of the Motor Vehicle Act, a vehicle without a fitness certificate is not a transport vehicle. 4. I have considered the submissions made. It is true that under sec.56 of the Motor Vehicles Act, a transport vehicle shall not be deemed to be validly registered for the purpose of sec.39 unless it carries a certificate of fitness issued by the prescribed authority or by an authorised testing station. Sec.39 of the Act provides that no person shall drive any motor vehicle and no owner of a motor vehicle shall permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter 4 of the Motor Vehicles Act. Thus, for the purpose of sec.39, a certificate of fitness issued under sec.56 of the Motor Vehicles Act is a necessity. 5. But, however, in this case, the question is whether the petitioner is liable to pay tax at the rate as applicable to goods carriage vehicle. Petitioner himself admits in the writ petition of his failure in giving prior intimation by filing Form 'G' prescribed under sec.5 of the Motor Vehicles Taxation Act. As far as the liability for payment of motor vehicle tax is concerned, in respect of every WP(C) 7749/08 Page numbers vehicle there is a presumption that such vehicle possessed by a person is deemed to have been kept for use in the State except in cases where exemption is claimed under sec.5(1) of the Taxation Act. In other words, if the exemption is not claimed by invoking sec.5(1), the liability to pay tax automatically gets attracted and the person cannot avoid liability for tax. Apart from sec.5(1), there is no other enabling provision in the Motor Vehicles Taxation Act to claim exemption from tax. 6. In this case, admittedly, the vehicle in question is a goods carriage vehicle and the petitioner has not claimed exemption in terms of sec.5(1). It may be true that the vehicle was not used by the petitioner after 30.6.2001 or after the expiry of the permit or the certificate of fitness. But then, if those were the grounds for claiming exemption, the method available to the petitioner was to have filed form 'G' prescribed under sec.5(1) of the Act. This has not been done by the petitioner. If that be so, the stand taken by the respondent in Ext.P6 cannot be faulted. That apart, the petitioner has not shown me any provision in the Motor Vehicles Taxation Act for realising tax at the non-transport vehicle rate in WP(C) 7749/08 Page numbers respect of a goods carriage. Thus Ext.P6 reply given by the 1st respondent in pursuance to Ext.P5 judgment of this court is to be upheld. Consequently the proceedings initiated by Ext.P7 for recovery of the amount due from the petitioner also is liable to be upheld. Thus, I do not find any merit in the contentions raised by the petitioner and the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE mt/-