IN THE HIGH CWRT OF KARNATAKA 4T BANGALORE DATED THIS THE 4th DAY OP JU 1998 BEFORE : THE HON’BLE MR.JUSTICE TIRATH S.THAKUR WRIT PETIT ION No.1116J2g2, Sri,Yeerappa, s/o Mallikarjunappa Govesbpwar, Major, No.15, Deenabandu Colony, Karwar Road, Hubli; Dharwad Dist, ,Petitjoner, ( By Sri.B.V.Katageri & Sri,S.G.Angadi, Advocates, ) AND: The Assistant Commercial Ta Officer, Sale e Tax, 0 heokpost, Yermarus Road, Shakt inagar, EAICHUR. • .Respondent, ( By Sri,K.M,Shivayogiewamv,Addl,G.A, ) This wrt petition filed praying to quash the impugned assessment order dated 3O121991 in respect of the vehicle No,MEZ—6425 against the petitioner vide AnnexureC; eo, This writ Detition coming on for hearing this day, the court made the following order : • , 2/ ORDER In this petition for a certiorari the petitioner calls in question an order dated 30th of December, 1991, passed by the Respondent Assessing Authority determi ning a sun of s.5l ,075/— towards tax and penalty u/s. 28AA of the Karnataka Sales Tax Act. 2, The petitioner is the owner of a goods vehicle bearing registration No,?Z6425, The said vehicle checked at the sales tax check—post, Yerrnarue Road, Shaktinagar, Raichur on 7th August 1991 carrying on 600 tins of Vanaspati, to be delivered to Gaanana Traders at Corlim, in Goa, On an application made by the driver of the vehicle the Entry check Post Officer Sales Tax, Cdheok Post, issued a transit pass bearing No.032401, dated 781991 ifl his favour,the duplicate and triplicate copies where of we to be surrendered by him on or before the 11 p.m. of 8th of August, 1931, before the Exit Check Poet Officer, Since the tripli cate copy of the tr&isit pass issued to the driver was not received by the entry check post Officer, from the Exit Check Post Officer, a notice u/s.28AA(4) of the Act, was iued t the pet tioner to show cause e3e why an amount of Re. 17,025/— towards Sales—tax and a penalty of Es.34,050/— as per Sec.2SAA(4) and P8AA(’) of the Act be not recovered from him. The tetitioner appears to have acknowledged the notice and sent a reply in which it was inter alia stated ‘that the vehicle in question wag not covered by a Gca permit and that the goods were carried only upto Gadeg for onward transhipsent to Goa at the ocasignors risk. It is also pointed out tat t. goods were deepatched througn Ws.Ganesh Trarsport Hyderabad by the consignor MIs. Tungabhadra Industries Ltd., Secunderabad. Procee dings for recovery of tax and penalty etc could there fore according to the petitiotsr be initiated only agaitat tue Transport Company or ‘the consignor. The Assessing Authority has by his order dated 30th of December, 1995, rejected the defence set-up by the petitioner and levied a penalty of Rs.34,050/— besides a tax of Rs.17,025/—. Aggrieved, the petitiotar has eu at Vie p”eaent wnt “tit’rn as air.’; po nte4 at earlier. 3. Counsel for the petitioner argued that te peti tioner was m doubt the true and the registered oaier of the vehicle but in tens of explanation to Sec.28AA, ... in cases where the vehicle is hired for transportation of goods by some other person, the hirer of the vehicle is for purposes of said Section to be deemed to be the owner of the vehicle • She contended that in the ins tant case, the vehicle in zestion had been hired by the Transport Company through whom the goods in ques tion had been loaded and deepatched by the consignor and therefore for purposes of Sec,28AA, it wa either the transport Company or the consignor of the goods which was to be treated as the owner of the vehc1e liable for payment of tax as also the penalty amount, 4, Mr K.M. 3 hivogiswamy, Addl,Govt,Advocate appearing for the other sIde however contended that the transport company appeared only to be a commission agent and could not be aaid to be the hirer of the vehicle, He urged that the liability to pay the tax and. the penalty, could be fastened either on the owner of the vehicle or the oonsingor of the goods, dependihg upon the evi dence which the petitioner troduces in suooort of the case that the vehicle had actually been hired out either to the company or to the consignor. He submItted that since no material bad been produced before the Asse— saing Authority, there was r discussion on that aspect \ of the matter, in the impugned order, 5, Te explanation offered to Section 28AA makes it fairly evident that for purposes of the said provi sion, the hirer of the vehicle is deemed to be the owner of the hjcle in cases where the vehicle is hired for transportation and goods by some persons other than the real owner. The reply submitted by the petitioner, although not very happily worded, did raise n objec tion to the levy of tax or penalty being levied against the petitioner. he reply stated that the goods had been loaded through Ganesh Transport Company, and that either the Company or the Consignor Industrial unit was responsible for any violation of Sec,2SAA, In the circumstances therefore the Assessing Authority ought to have examined that aspect of the matter and speci fically dealt with the question whether or not the vehicle hd been hired for transportation of goods by some other peson and if so o that person was an.d what wae the extent of his liability for pa’ent of the tax amount or the penalty leviable under the Act, The order under challenge does not however satis— factorly deal with the said question, The order pro ceeds on the assumption that the owner of the vehicle would mean the registered owner a lone ad ignores m6 / —6— totally the effect of the explanation to Seo,28AA. In the circumsts.ces I find it difficult to support tF.e said order. This petition accordingly succeeds and is hereby allowed, The impugned order shall stand quashed wIth a direction to the Assessing Authority to examine the matter once again in the context of te explanion to Sec,28 of the K,3,T,Act, 1957, and determine the liability afresh fler notice to the Transport Cpany and the consignor/consignee the goods in question. The petitioner is directed to appear before the Rese pondent on the 13th of July, 1998, No costs. Sd/ 4’ JUDGE S Abid/e ‘