Karnataka High Court
Lingamma vs Regional Transport Officer on 23 June, 1987
Equivalent citations: ILR1987KAR3307
ORDER Venkatachala, J.
1. By consent of Learned Counsel, this Writ Petition is treated as having been posted for hearing and I have heard them.
2. The Petitioner is the registered owner of the motor vehicle bearing registration No. MYN 4882. Since that vehicle was one for which a special permit had been issued under Section 63(6) of the Motor Vehicles Act, 1939, quarterly advance tax payable thereto under Item 6(a) of Part-A of the Schedule to the Karnataka Motor Vehicles Taxation Act, 1957 (for short 'the Act') for the period from 1-5-1986 to 31-7-1986, had been paid. That vehicle was, however, altered as a stage carriage with effect from 27-6-1986 making it liable for tax at a lower rate as provided for in Item 4(4)(a) of Part-A of the Schedule to the Act. That vehicle being used from 27-6-1986 to 31-7-1986 as a stage carriage, the petitioner made a claim before the Regional Transport Officer, Mysore (respondent-1) for refund of tax paid earlier by her for the vehicle as provided for in Section 7 of the Act. But, that claim was rejected by respondent-1 stating that the petitioner had not complied with Section 7 of the Act read with Rule 20 of the Karnataka Motor Vehicles Taxation Rules, 1957 (for short 'the Rules') and that no rate of refund had been fixed under Rule 23 of the Rules. The endorsement dated 26-9-1986 issued by respondent-1 in that regard has been produced in the Writ Petition as Annexure-A. That endorsement being appealed against by the petitioner before the Deputy Commissioner for Transport, Mysore Division, Mysore (respondent-2), that appeal has been dismissed. The appellate order has been produced in the Writ Petition as Annexure-B. It is the said endorsement and the appellate order which have been impugned by the petitioner in this Writ Petition.
3. Learned Counsel for the petitioner submitted that the endorsement and the appellate order impugned in the Writ Petition, are unsustainable, in that, the claim made by the petitioner for refund, as provided for under Rule 20 of the Rules, was sustainable under Section 7 of the Act.
4. I find substance in the submission made by the learned Counsel for the petitioner. Rule 20 of the Rules provides for claiming a refund under Section 7 of the Act by means of an application in Form 16 annexed to the Rules. It is not in dispute that such an application had, in fact, been made by the petitioner before respondent-1. If so, the view taken by the respondents that the petitioner had not, made the application as required under Rule 20 of the -Rules, is untenable.
5. Coming to the question relating to the refund of tax under the Act, the appropriate provision therein is Section 7. It reads :
"Refund of tax - (1) Where a tax on any motor vehicle has been paid for any period and it is proved to the satisfaction of the prescribed authority that the vehicle has not been used during the whole of that period, or a continuous part thereof, not being less than one calendar month, a refund shall be made of such portion of the tax and subject to such conditions as may be prescribed.
(2) When a motor vehicle in respect of which the tax has been paid is altered in such manner as to cause it to become a vehicle in respect of which the tax is leviable at a lower rate, the person who has paid such tax shall be entitled on the production of a certificate signed by a registering authority stating that the vehicle had been so altered to a refund of a sum equal to the difference between the amount which would be refundable to him in accordance with the provisions of Sub-section (1) on the surrender of the taxation card and the amount of the tax leviable on such vehicle at the lower rate."
6. Rule 23 of the Rules, in so far as it is material for giving effect to the provision in sub-sections (1) and (2) of Section 7, is excerpted :
"23 Scales of Refund--In the case of motor vehicles which have not been used during the periods specified in column I of table below, refund of tax at the rate specified in the corresponding entry of column 2 of the said table shall be payable subject to the conditions and explanations annexed to the said table.
TABLE Particulars of the period during which a vehicle has not been used Rate of refund
(i) When the vehicle has not been used during the whole of a quarter/half year/year The tax paid for period.
(ii) When the vehicle has not been used for a period not less than two continuous calendar months during the quarter but less than the whole quarter.
Three-fifths of the tax paid
(iii) When the vehicle has not been used for a period not less than one calendar month but less than two complete calendar months during the quarter Three-tenths of the tax paid
(iv) When tax has been paid at the reduced rate for the second and third months only and the vehicle has not been used for not less than One month.
Three- sevenths of the tax paid CONDITIONS
1. 2. 3. ........ ........... ...........
Explanations I. II. ........... ............"
7. According to Sub-section (1) of Section 7, as becomes clear from a perusal thereof, where a tax has been paid on any motor vehicle for any period, the prescribed authority, if is satisfied on proof that the vehicle has not been used during the whole of that period, or a continuous part thereof, not being less than one calendar month, shall refund such portion of the tax subject to such conditions as may be prescribed. Rule 23 refers to scale of refund to be made respecting motor vehicles for which tax has been paid, but not used during specified periods. Then, according to subsection (2) of Section 7, when a motor vehicle for which tax is paid, is altered so as to make it liable for payment of tax at a lower rate, the person, who will have paid the tax, becomes entitled to a refund of a sum equal to the difference between the amount refundable to him under Sub-section (1) thereof and the amount of tax payable respecting the altered vehicle, at the lower rate.
8. In the instant case, the petitioner had paid an advance tax for her vehicle as one having a special permit, for a quarter, that is, three months. Then, when she altered that vehicle with special permit into a Stage carriage and used it as a stage carriage for a period exceeding one month, it was not used during that period as a vehicle with special permit. Therefore, the petitioner becomes entitled for refund under Sub-section (1) of Section 7 read with Rule 23 to three-tenths of the amount of tax, which she had paid. Since she had used that vehicle as a stage carriage during that period, she becomes liable for payment of tax at a lower rate. Then, under Sub-section (2) of Section 7, the amount, which she would be entitled to claim as refund, is a sum which is equal to the difference of the amount which would be refundable to her under Sub-section (1) and the amount of tax leviable on her stage carriage at a lower rate.
9. It is not in dispute that the petitioner had paid advance tax under the Act respecting her motor vehicle, for which a special permit had been issued, at the rate of Rs. 300/- per seat per quarter. It is also not in dispute that after the alteration of the petitioner's vehicle as a stage carriage, the tax payable thereto per seat per quarter was Rs.250/. Therefore, the refund of tax, to which the petitioner becomes entitled for a month, would be Rs. 90/ per seat, while the tax payable at a lower rats for the vehicle as a stage carriage for a month would be Rs. 83-33 (approximately) per seat. Hence, the refund of tax, to which the petitioner would be entitled respecting each seat of her motor vehicle, would be a sum equal to the difference between Rs. 90/- and Rs. 83-33 (approximately), which works out to Rs. 6-66 (approximately) per seat. Therefore, refund, to which she becomes entitled for 50 seats of her vehicle, would be Rs. 333-00 (approximately).
10. In the result, I allow this Writ Petition partly, quash the impugned endorsement and the order and direct respondent-1 to refund the tax paid by the petitioner respecting her motor vehicle bearing Registration No. MYN 4882 in a sum of Rs. 333-00, that is, for 50 seats, within two months from the date of receipt of this order.