Madhya Pradesh High Court
Jabalpur Bus Operators' Association ... vs Union Of India (Uoi) And Ors. on 9 September, 1993
Equivalent citations: I(1994)ACC265, AIR1994MP62, 1993(0)MPLJ992, AIR 1994 MADHYA PRADESH 62, (1994) JAB LJ 52, (1993) MPLJ 992, (1994) 1 ACC 265
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. This order shall also govern disposal of Misc. Petition No. 979 of 1993 (Jagdish Singh v. State of M.P.), Misc. Petition No. 1388 of 1993 (M/s. Public Travels v. Union of India), 1562 ofl993(M/s. Akhtari Begum v. Union of India), Misc. Petition No. 1808 of 1993 (Kanker Roadways v. State of M.P.), Misc. Petition No. 1945 of 1993 (Janki Prasad Singhal v. State of M.P.) and 1970 of 1993 (Capital Roadways v. Union of India).
2. The petitioners are transport operators operating their vehicles under the permits granted to them by the transport authorities of the State of Madhya Pradesh under the provisions of the Motor Vehicles Act, 1988, falling under category of Vehicles shown in Schedule-1, Clauses (iv) (d) (i) (ii) (2) of the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991.
3. The State Legislature enacted an Act called the Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 (Act No. 25 of 1991), as amended by Act No. 26 of 1991, which received the assent of the Governor on 21st September, 1991 and published in the M.P. Gazette (Extraordinary) dated 27th November, 1991. The Madhya Pradesh Motoryan Karadhan Rules, 1991 were framed in exercise of the powers conferred under Section 24 of the Karadhan Adhiniyam, 1991 and on 11th October, 1992 the Rules were amended. The Adhiniyam was brought into force to consolidate and amend the law relating to levy of tax on the motor vehicle in the State of Madhya Pradesh. The Adhiniyam of 1991 was challenged in this Court by filing writ petitions by various transport operators; one of them was reglsterd as Misc. Petition No. 39 of 1992 and this Court by order dated 1-10-1992 upheld the constitutional validity of the provisions of the Adhiniyam, 1991, by rejecting the challenge on the ground of lack of legislative competence and violation of Articles 301 and 19(1)(g) of the Constitution of India. However, it was held by the Division Bench of this Court that the Legislature in its wisdom may fix any rate of tax, but total negation for procedure for assessment of tax is an arbitrary act which tantamounts to denial of fair procedure ordinarily available under the taxing statutes; the right to appeal provided, of the tax assessed in not effective and the procedure for refund would not cure the defect of levy of tax without assessment. The demand of tax without assessment is extraction without authority of law and hence ultra vires under Articles 14 and 19(1)(g) of the Constitution of India. The effect of the judgment in Misc. Petition No. 39 of 1992 was that although the provisions of the Adhiniyam of 1991 are intra vires, but no tax can be collected unless a fair procedure is prescribed for assessment of tax under the Adhiniyam of 1991. This is apparent from para 47 of the order of this Court wherein the respondents were restrained from recovering any tax over and above levied immediately before coming into force of Act No. 25 of 1991 and 26 of 1991. The petitioners were directed to deposit tax on their motor vehicles at the rate prevailing immediately before the commencement of Act No. 25 of 1991 and 26 of 1991. This direction was given in respect of the vehicle falling in Schedule-I, Clauses (iv) (d) (i) (ii) (2) of the M.P. Motoryan Karadhan Adhiniyam, 1991. As far as the other vehicles, by whatever name they are called, are concerned, tax was directed to be deposited at the rates mentioned in Schedule-I of Act No. 25 of 1991 as amended by Act No. 26 of 1991.
4. It appears that in order to provide due procedure for assessment of tax on motor vehicles falling under Schedule-I, Clauses (iv) (d) (i) (ii) (2) and to comply with the view expressed by this Court, the Governor of the State of Ma'dhya Pradesh promulgated Ordinance No. 6 of 1992, i.e. Madhya Pradesh Motoryan Karadhan (Sanshodhan) Adhiniyam, 1992, published in the M.P. Gazette (Extraordinary) dated 10th October, 1992. The Ordinance was promulgated as the State Legislature was not in Session and the Governor of Madhya Pradesh was satisfied that circumstances do exist which render it necessary for him to take immediate action in the matter. This Ordinance No. 6 of 1992 was subject matter of challenge in a batch of petitions in this Court; one of them was Misc. Petition No. 4145 of 1992 (Pratap Singh Katuria v. State of M.P.). On 15th December, 1992, a proclamation was issued by the President of India under Article 356 of the Constitution of India, whereunder the powers of the State Legislature of Madhya Pradesh have been declared to be exercisable by or under the authority of Parliament, on proclamation of the declaration under Article 356 of the Constitution, the M.P. Motoryan Karadhan (Sanshodhan) Adhyadesh, 1992 has ceased to have any effect, and, therefore, the M. P. Motoryan Karadhan (Amendment) Ordinance, 1993 (Act No. 20 of 1993) was promulgated by the President of India on 30 January, 1993 and published in the M. P. Gazatte (Extraordinary) dated January 30, 1993. This Ordinance, promulgated by the President of India, was under challenge in the present petitions. Thereafter, the Madhya Pradesh State Legislature (Delegation of Powers) Act, 1993 (Act No. 9 of 1993) has received the assent of the President on 31st March, 1993 and was published in the Gazette of India (Extraordinary) dated 31-3-1993. During the pendency of the petitions, the President of India in exercise of the power under Section 3 of the M.P. State Legislature (Delegation of Power) Act, 1993, enacted the M.P. Motoryan Karadhan (Amendment) Act, 1993 (President's Act No. 10 of 1993) which was published in the M.P. Gazette (Extraordinary) dated 3rd April, 1993, whereby certain sections of the M.P. Motoryan Kardhan Adiniyam, 1991 were amended. Amending Ordinance No. 20 of 1993 stands repeated by Section 9 of the Act No. 10 of 1993. The petitions were amended so as to challenged Amending Act No. 10 of 1993 and as a consequence thereof the M.P. Motoryan Karadhan (Amendment) Act, 1993 (Act No. 10 of 1993) is under challenge in this petition and also in the batch of petitions. The assessment orders passed by the Taxing Officer, Jabalpur on 19-3-1993 and demand notices are also challenged.
5. The learned counsel for the petitioners, firstly, contended and challenged the constitutional validity of the M.P. State Lgisla-ture (Delegation of Power) Act, 1993, and as a necessary corollary, the amending Act, i.e. the M. P. Motoryan Karadhan (Amendment) Act, 1993 (Act No. 10 of 1993) on the ground that the delegation conferring legislative power on the President of India is permissible only when the Parliament is not in session and not otherwise; secondly, while enacting Act No. 10 of 1993, the President has not consulted the Committee constituted for that purpose; that Act No. 10 of 1993 has not been laid before each House of Parliament and, therefore, Act No. 10 of 1993 is a colourable exercise of power and is liable to be struck down. On the other hand, the learned counsel for the respondents, supported Acts Nos. 9 and 10 of 1993 on the grounds that it is permissible to delegate and confer on the President the power of the Legislature of the State of Madhya Pradesh to make laws whether the Parliament is in session or not; that there are no allegations in the petition laying down the basic foundation for building up an argument as to the competency of the delegation of power to the President and that in regard to consultation by the President with the committee constituted for the purpose and of laying Act No. 10 of 1993 before each House of Parliament.
6. The M.P. State Legislature (Delegation of Powers) Act, 1993 (Act No. 9 of 1993) (hereinafter referred to Delegation of Powers Act, 1993) was enacted for the purpose of conferring all the powers of the Legislature of Madhya Pradesh of making laws on the President of India on proclamation being issued on I5th day of December, 1992 under Article 356 of the Constitution of India by the President. By this Act the power of the legislature of the State of Madhya Pradesh to make laws which has been declared by the proclamation to be exercisable by or under the authority of the Parliament has been conferred on the President, Delegation of Powers Act, 1993 provides that in exercise of the said power, i.e. power to make laws, the President shall, whenever he considers it practicable to do so, consult a committee constituted for the purpose, consiting of 20 members of the House of People nominated by the speaker and 10 members of the Council of States nominated by the Chairman. Further, every enactment so made by the President shall, as soon as may be after enactment, be placed before each House of Parliament. Thus, under Act No. 9 of 1993 the powers of the Legislature of the State of M.P. to make laws were delegated to the President of India. The condition that the President shall whenever he considers its practicable to do so, consult the committee before enactment of any Act is subject to the satisfaction of the President. The President is not obliged to record reasons for his satisfaction of practicability of consultation with the committee before enacting a statute. The satisfaction of the President is subjective to that authority and cannot be placed on the anvil of any objective test. Besides this, there are no averments in the petition to contest the subjective satisfaction of the President on the test of extraneous of foreign consideration. Act No. 10 of 1993 has given reasons for the enactment and according to that as a proclamation was issued on 15th December, 1992 under Article 356 of the Constitution of India by the President in relation to the State of Madhya Pradesh declaring, inter alia, that the powers of the Legislature of the State of Madhya Pradesh shall be exercisable by or under the authority of the Parliament and the Motoryan Karadhan (Sanshodhan) Adhini-yam, 1992 ceased to operate from 25th January, 1993, after six weeks from the date of proclamation issued by the President, it is felt necessary to provide continuity of the provisions made for facilitating collection of tax on public service vehicles and as the Parliament was not in session at the time of expiry of six weeks from the date of proclamation issued by the President, therefore, Ordinance No. 20 of 1993, i.e. M. P. Motoryan Karadhan (Amendment) Ordinance, 1993 was promula-gated by the President under Article 123 of the Constitution and the proposed legislation seeks to replace the said Ordinance and in view of the urgency of the matter, it is not practicable to consult the Consultative Committee of the Legislature to be constituted under the above Act, the legislation is accordingly being enacted without reference to the Consultative Committee. The reason given for not consulting the Consultative Committee before the enactment is apparent that the Committee was not constituted and as immediate measures were required to be taken, Presidential Act No. 10 of 1993 was enacted by the President without consultation with the Committee. The propriety, expediency and necessity of legislation are to be determined by the legislative authority and not by the Courts.
7. A colourable exercise of legislative power is that although the legislature in passing a statute purported to act within its powers, but in effect and in substance has not acted within its powers. The question which requires to be considered by the Court is not the motive on which the legislature has enacted a particular law; it is in fact and reason the question of powers of the Legislature to make the law, i.e. the Legislative competence to enact a particular law. In T. Venkata Reddy v. State of A.P., AIR 1985 SC 724 para 14 : 1986 Lab 1C 357, the Supreme Court has held at page 731; of AIR :
It is a settled rule of consitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and not for determination by the courts.
The Supreme Court has clearly laid down and demarcated the sphere under which a law made by a legislature could be tested. In Jayvantsinghji v. State of Gujarat, AIR 1962 SC 821 Para 16 : (1962 (2) Cri LJ 103, it has been stated that the idea conveyed by the expression 'colourable legislation' is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. Thus, Presidential Act No. 10 of 1993 can be declared ultra vires of the Constitution if it is colourable legislation, as mentioned in the aforesaid decisions of the Supreme Court, i.e. the legislation is made without there being a Legislative Competence. The conditions put in Act No. 9 of 1993 does not take away the competence and powers of the President to enact a law, which the Legislature of Madhya Pradesh was competent to make before the proclamation under Article 356 of the Constitution. That being so, the Presidential Act No. 10 of 1993 cannot be said to be a colourable legislation. As far as not laying the Act before each House of Parliament, as soon as may be after the enactment, there are no allegations in the petition that the Act is not laid before each house of Parliament. In the absence of basic foundation on which the counsel for the petitioner is building up his argument, this question cannot be decided.
8. It is next contended and argued by the learned counsel for the petitioners that conferral of powers to the president by the Parliament to enact laws for the State Legislature of M.P. can only be exercised when the Parliament is not in session. This contention is devoid of any substance. By virtue of Articles 357(1) of the Constitution when a proclamation is issued under Clause (1) of Article 356, and it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent under Article 357(1)(a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred, to any other authority to be specified by him in that behalf. By virtue of Article 357(1)(a) of the powers to enact State laws can be conferred on the President by the Parliament. There, is nothing in this Article which could be read to curtail the authority of Parliament to confer powers to enact law of the State Legislature only when Parliament is not in session. This article do not even remotely support the contention of the learned counsel for the petitioner that conferral of powers by Parliament to the President for enacting laws can ony be for the period when the Parliament is not in session. It is a golden rule of construction of statutes that when the words are clear, plain and unambiguous and susceptible to only one meaning, the Courts are bound to give effect to that meaning only. The conferral of powers by Parliament to the President to legislate laws is authorised by the Constitution and, therefore, cannot be challenged on the ground of abdication of legislative powers in facout of an outside authority. Article 357(1)(a) itself is a complete answer to the contention raised by the learned counsel for the petitioners.
9. It was next contended by the learned counsel for the petitioners that the impugned Presidential Act No. 10 of 1993 has not provided a machinery for assessment of tax, inasmuch as, even after amendment of M.P. Motoryan Karadhan Adhiniyam, 1991 by Act No. 10 of 1993, there are no provisions made in the Act and the Rules framed thereunder submission of return by the owners of the vehicle. It is pertinent to note that in Misc. Petition No. 39 of 1992, a Division Bench of this Court has up held the constitutionality of the provisions of the M.P. Motoryan Karadhan Adhiniyam, 1991, but has directed to provide a machinery under the Act and the Rules made thereunder for proper assessment of tax and directed the respondents therein to take steps for providing a machinery. After the judgment of this Court on 1-10-1992, the Governor of Madhya Pradesh issued an Ordinance No. 6 of 1992, i.e. M. P. Motoryan Karadhan (Sanshodhan) Adyadesh, 1992 on 10-10-1992, which was replaced by the Presidential Ordinance No. 20 of 1993, i.e. M.P. Motoryan Karadhan (Amendment) Ordinance, 1993 and further by Presidential Act No. 10 of 1993. It is to be seen whether any machinery has been provided for assessment of tax liability, whereunder the owners of the vehicle have been given a right to be heard, quantification of the tax liability by the authority, after application of mind to the facts of the case in hand and the respective submissions made by the parties. In this connection, it will be fruitful to reproduce Section 8, which has been substituted by the Amending Act No. 10 of 1992. Section 8 and Schedule-1, Clause (iv)(d)(i)(ii) and (2) read as under :--
8.(1) Every owner, who is liable to pay the tax under this Act shall file a declaration with the Taxation. Authority together with the proof of the payment of the tax which he appears to be liable to pay in respect of such vehicle in such form and within such time as may be prescribed.
(2) When any motor vehicle in respect of which tax has been paid is altered in such a manner as to cause the vehicle to become a motor vehicle in respect of which a higher rate of tax is payable, the owner of such vehicle shall file an additional declaration with the Taxation Authority together with the certificate of registration and the proof of the payment of difference of tax which he appears to be liable to pay in respect of such vehicle, in such form and within such time as may be prescribed.
(3) On receipt of the declaration under Sub-section (1) or the additional declaration under Sub-section (2) as the case may be, the Taxation Authority shall, after making such enquiry as it deems fit and after giving to the owner an opportunity of being heard, deter-mine, by an order in writing, the tax payable by the owner and intimate the same to him in such form and within such time as may be prescribed.
(4) Where the owner fails to file a declaration required under Sub-section (1) or (2) the Taxation Authority may, on the basis of information available with it and after giving to the owner an opportunity of being heard, by a order in writing, determine the amount of tax payable by such owner suo motu and intimate the same to him in such form and within such time as may be prescribed.
(5) On determination of the tax payable under Sub-section (3) or (4), as the case may be, by the Taxation Authority, the difference of the amount of tax payable and the amount of tax paid shall, as the case may be, be paid by or refunded to the owner in a manner applicable to the payment or refund of tax under this Act and rules.
. (6) Where the owner files a false declaration, taxation authority shall, after giving the owner an opportunity of being heard, by an order in writing, impose a penalty not exceeding twice the amount of tax determined under Sub-section (3).
Explanation: "Alteration in a motor vechile" includes an acquisition, surrender or non-use of or any change in a permit by which the vehicle is covered.
FIRST SCHEDULE I. Motorcycle II. Motor Car III. Invalid Carriage IV. Public Service Vehicle :
*****
(d) Vehicles permitted to carry more than six passengers and plying as stage carriage on routes other than city routes.-
(1) In respect of vehicles permitted to ply as air-conditioned service or deluxe or express service for every passenger which the vehicle is permitted to carry and where the total distance permitted to be covered by the service in a day -
(i) does not exceed 100 K.M. (a) For air-conditioned/ Rs. 100.00 per deluxe service seat per month (b) For express service Rs. 84.00 per seat per month (ii) thereafter for each 10 K.M. or part thereof- (a) For air-conditioned/ Rs. 9.00 per deluxe service seat per month (b) For express service Rs. 7.50 per seat per month
(2) In respect of vehicles permitted to ply as ordinary service for every passenger which the vehicle is permitted to carry and where the total distance permitted to be covered by a vehicle in a day -
(1) does not exceed Rs. 58.00 per 80 K.M. seat per month
(ii) thereafter for each Rs. 6.00 per
10 K.M. or part seat per month thereof ***** Sub-section (i) of Section 8 provides that every owner, who is liable to pay the tax, shall file a declaration in the prescribed form to the Taxation Authority with proof of payment of tax which he appears to be liable to pay for vehicle. Thus, the owner is liable to file a declaration of his own tax liability. In Schedule-1 under the heading "Public Service Vehicle" is shown the category of vehicles depending on its capacity to carry passengers for which permit is granted by the transport authorities. Under explanation 1(i) the Motor Vehicle for which permit is granted the number of passanger will be as authorised in the permit. Thus, the liability for payment fo tax is dependent on the permit issued of the vehicle owned and possessed by the owner and not on the basis of passengers carried in the vehicle on a particular day. Of course, there is difference of tax liability depending on the type of vehicle, viz., air conditioned, deluxe service express service or ordinary service and on the basis of the distance permitted to ply under the permit, which is known to the owner of the vehicle to whom permit has been issued by the transport authorities and can easily be calculated for the purpose of submission of declaration as required under Section 8(1) of Act No. 10 of 1992. Therefore, for the purpose of filing the declaration, the onwer of the vehicle can make self assessment of his tax liability. It cannot be said that there are no guidelines provided for filing of declaration by the owner of vehicles. Sub-section (2) of Section 8 gives opportunity to the petitioners to submit additional declaration when the category of vehicle is altered whereby a higher rate of tax is payable and when tax has already been paid for the currency of the permit. Subsection (3) of Section 8 directs that the taxing authority, after submission of the declaration and additional decalration, if any, under subsections (1) & (2), shall make an enquiry and give an opportunity to the person making the decalration of being heard, determine the amount of tax payable by the owner. The taxing authority shall also intimate the tax liability to the owner of the vehicle in such form and within such time as may be prescribed. Sub-section (4) gives suo motu powers of assessment by the taxing authority when the owner fails to file declaration under Sub-section (1) or Sub-section (2) of Section 8. Sub-section (5) provides for refund of the amount of tax paid in excess than assessed. Thus, Section 8 of the Amending Act provides for filing of declaration and additional declaration if there is alteration in the vehicle, making enquiry, giving opportunity to the petitioners of being heard and thereafter, determine the tax liability and pass an order in writing, intimate the tax liability to the owner of the vehicle. There is also provision for refund of tax paid in excess, if any, by the owner of the vehicle.
10. Section 14 of the Act is in relation to refund of tax where tax for any motor vehicle has been paid for any quarter, half-year or year and the motor vehicle has not been used during the whole of that month, quarter, half year or year or a continuous part thereof not being less than one month and written intimation of such non-use has been given in the prescribed form to the Taxation Authority or where the vehicle has been so altered as to entitle the owner to the refund of a portion of tax already paid. Further under the proviso, for the reasons to be prescribed by the State Government, if it has not been possible to operate a public service vehicle covered under a regular permit on the route, tax refund may be made for a period less than a month to such extent and on such terms and conditions as may be prescribed. The Madhya Pradesh Motoryan Karadhan Rules, 1991 have been amended after the decision of this Court on 11th October, 1992, wherein new Rule 13-A has been added, which is quoted below :
13-A. -- Procedure for intimation of non-use of permit etc. on part-route :--
(1) If a stage carriage permit, granted in respect of a route which remains non-motor-able partly during rainy season, contains a condition to the effect that during the period specified therein the permit shall be valid only of the specified part route, fhen the tax payable in respect of the vehicle covered by such permit during such specified period shall be calculated in a slab worked out after excluding the non-motorable part-route.
(2) If a stage carriage permit has been granted in respect of a route, a part of which remains non-motorable during rainy and the permit does not contain any condition governing the part-route operations, then the procedure contained in Rule 13 shall, in so far as may be applicable, apply for intimating the non-operation of vehicle on the nonmotor-able part route.
Under this Rule a procedure has been Had down for intimation of the non-user of the permit on the part of the route. Rule 12 gives procedure for intimation of non-use of permit on account of mechanical break down due to accident or otherwise, or repair and maintenance of the vehicle; non-motorability of route due to rains or otherwise; or non-operation on account of an order of any Court, Tribunal or Authority. Rule 13 is regarding non-operation for the motor vehicle in unforeseen circumstances. Rule 14 provides for a procedure for refund. Sub-Rule (6) of Rule 14 is added by way of amendment on 11-10-1992 in place of old Sub-Rule (6), which provided for passing of an order in the matter of refund of tax claimed. Under the old Sub-Rule (6), if the Taxation Authority or the officer competent to sanction refund of tax, refuses to sanction refund, applied for or does not sanction the full amount claimed, the Taxation Authority or the officer, as the case may he, was required to communicate the reasons for such refusal in writing to the applicant. However, there was no provision for hearing the applicant before the orders are passed. Under the amended Sub-Rule (6), the Taxation Authority or the officer competent to sanction refund of tax feels that the refund applied for is not admissible, such authority or officer shall give an opportunity to the applicant of being heard and shall pass order thereafter. This is the major change brought whereby a party is entitled to be heard before the order is passed on an application for refund. Thus, it would appear that by virtue of Section 14 read with Rules 12, 13, amended Rule 13-A and 14, there are provisions made for refund of the tax which the owner of the vehicle is entitled to an account of non-user of permit, non-user of the vehicle or because the route remains non-motorable or portion of the route covered under the permit was not possible to be operated, etc..
11. The counsel for the petitioners then argued that there is no provision in the Act of the Rules framed thereunder even after the amendment of the Act and the Rules, giving opportunity to the petitioners/owners of the vehicle to furnish any material before the Taxation Authority to show as to the actual tax leviable, at the time of the assessment. It is a well settled principle of construction of statutes that the Court should strongly lean against a construction which reduces the statute to a futility. It is the duty of the Court to make the statute operative and unless it is impossible to make it operative, it is not permissible to declare the statute unworkable because a statute is designed to the workable and, therefore, the interpretation thereof by a Court should be to secure that object. The Court shall normally reject a construction which will defeat the intention of the legislature even though there may be some ambiguity in the language used. In Kedar Nath Singh v. State of Bihar, (1962)Supp (2) SCR 769 : AIR 1962 SC 955) at page 809, the Supreme Court has held that: "It is well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress." In this context the amending Act No. 10 of 1993 was enacted to amend the Principal Act of 1991 in accordance with the directions issued by this court to make the statute workable as regards to the assessment of tax liability. The Act No. 10 of 1993 was enacted to suppress the mischeif and to make the statute workable, the Principle Act of 1991 with the Rules framed thereunder are held to be valid in Misc. Petition No. 39 of 1992 by a Division Bench of this Court, except the provision of "assessment of tax". The Amending Act No. 10 of 1993 is directed towards achieving this objective by enacting provisions for providing adequate machinery for assessment of tax. The expression "after making such inquiry as deems fit and after giving an opportunity to the owner of being heard" are very wide in their import. It is permissible for the owner of the vehicle to furnish additional material before the Taxation Authority for assessment of tax liability, after the declaration is filed and before the assessment order is passed, in the shape of additional statement or return. The words "'after making such inquiry as deems fit" makes it incumbent on the taxing authority to consider all relevant material placed before it before the order of assessment is passed. Subsection (3) of Section 8 cannot be read as to mean that taxation authority can only consider the declaration filed by the owner under Sub-section (1) of Section 8 of the Amending Act No. 10 of 1993. The scope of inquiry and adjudication brings within its sweep all 'relevant material' before the assessment. Under Sub-section (3) of Section 8. The owner of the vehicle is entitled to place additional material before the taxation authority in the shape of return before the assessment of tax to demonstrate before it that tax liability of the owner is less than the tax already paid with the declaration. The taxing authority is bound to consider that material before the assessment order is passed. This is in consonance with Sub-section (5) of Section 8 of Act No. 10 of 1993 whereunder provision is made for refund of tax paid in excess than assessed.
12. If the assessment order is passed prior to the period for which tax was paid, then the petitioners/owners will have an opportunity to claim refund under Section 14 read with Rules 12, 13, 13-A and 14 of the M,P. Motoryan Karadhan Rules 1991 as amended in 1992. By virtue of amendment of Sub-Rule (6) of Rule 14, opportunity is given to the owner to put forth his case before the authority who is competent to grant refund, prior to orders of refund are passed. This given an opportunity to the owner of being heard before final refund order is passed by the authority regarding the tax liability of the owners of the vehicles. Thus, the M. P. Motoryan Karadhan Adhiniyam, 1991 with its its amendmemt and the Rules provide sufficient and adequate machinary for the assessment of tax liability owners of the vehilce on their furnishing declaration, which is nothing but a self-assessment by the assessee of his tax liability, and thereafter, consideration, of his application for refund after hearing them and refund of extra tax paid. The Taxation Authority is bound to consider all material placed by the owners of the vehicle regarding their tax liability before passing of the assessment order and order for refund. Provisions of Sections 8 and 14 in particular and the Rules 12, 13, 13-A and 14 provide reasonable protection and safeguards of the interest of the petitioners/owners against any arbitrary action by the authority in the assessment and refund of tax. Besides this, Section 20 of the M. P. Motoryan Karadhan Adhiniyam read with Ruile 18 provides for an appeal against the order of assessment which is an additional safeguard to the owners of the vehicle regarding payment of tax.
13. In view of the aforesaid discussion, we hold that the provisions of the Presidential Amending Act No. 10 of 1993 are intra vires and do not suffer from any constitutional illegality or infirmity. The amending Act provides for assessment of the petitioners/ owners tax liability on their vehicle under the M.P. Motoryan Karadhan Adhimiyam, 1991 by the taxing officer. Consequently all the petitions are dismissed with costs. Counsel's fee Rs. 250/-, if certified.
14. As regards orders passed by the taxing officer on 19-3-1993 and the demand notices dated 19-3-1993, the petitioners shall be at liberty, if so advised and deemed fit, to file appeal under Section 20 read with Rule 18 of the M.P. Motoryan Karadhan Adhiniyam and Rules, 1991 and the authority shall deal with the same in accordance with law.