Madhya Pradesh High Court
Bharat Bhooshan Chawla And Ors. vs State Of Madhya Pradesh, Through Tax ... on 25 June, 1993
Equivalent citations: AIR1993MP241, AIR 1993 MADHYA PRADESH 241
ORDER
1. Levy of additional tax under the M.P. Motor Vehicles Taxation Act, 1947 is under challenge in this writ petition.
2. The petitioners, who are as many as 23, are tempo owners who were plying their tempos (contract carriages) on temporary permits in Gwalior city. The registered seating capacity of their tempos is 7 + 1, i.e. seven passengers plus a driver. The temporary permit under which the petitioners plied their their tempos contained a condition that not more than six passengers shall be carried in the tempo. The R.T.O. (Tax Officer), Gwalior assessed additional tax payable under Section 3-A of the M.P. Motor Vehicles Taxation Act, 1947 on the tempos of the petitioners vide Assessment Orders Annexures 26 and 28 to 49. Feeling aggrieved by the assessment order petitioner No. J Bharat Bhooshan Chawla filed an appeal before Appellate Authority -- Transport Commissioner, Gwalior. His appeal was however dismissed, holding that additional tax was properly levied (See Annexure 27). Seeing the fate of the appeal filed by the petitioner No.1, the other petitioners, according to them, thought it futile to file appeals. All the petitioners have now combined and filed the present writ petition challenging the levy of additional tax.
3. The case of the petitioners is that under the charging provision, i.e. Section 3-A of the M.P. Motor Vehicles Taxation Act, 1947 'additional tax'is leviable on all public service vehicles whose seating capacity exceeds six passengers excluding the driver and the con-
ductor. Speaking differently, if the seating capacity of any public service vehicle does not exceed six, the additional tax is not leviable. The temporary permits under which the petitioners were plying their tempos contained a condition that the permit-holder shall not carry more than six passengers in his tempo. In view of this condition in the permit, it was proper to treat that the seating capacity of the tempos of the petitioners was not exceeding six, thereby they were exempt from payment of additional tax. This position was contested by the State of M.P., among other respondents. It was stated that the registered seating capacity of the tempos of the petitioners was 7 + 1. The seating capacity was thus exceeding six passengers and, therefore, additional tax was properly levied on the tempos of the petitioners. It was further stated that the petitioners at the time of making applications for temporary permits, had misrepresented in their applications that the registered seating capacity of their tempos was 6 + 1. This explained why their temporary permits stated that they would not carry more than six passengers in their tempos. The additional tax was leviable on the 'seating capacity1 of the vehicle, which admittedly was exceeding six, i.e. 7 + 1 and, therefore, the additional tax was properly leviable from the petitioners.
4. The question that falls to be considered in this writ petition is; whether 'additional tax' was properly not leviable from the petitioners. The question turns on the interpretation of Section 3-A of the M.P. Motor Vehicles Taxation Act, 1947 (Act No. VI of 1947). The relevant provision is Sub-section (1) of Section 3-A, which is reproduced below-
"Section 3 (1) In addition to the tax levied under Section 3 but subject to rules as may be made by the State Government in this behalf, there shall be levied and paid to the State Government an additional tax on all public service vehicles having seating capacity exceeding six passengers excluding the driver and the conductor at the rate specified in the Third Schedule."
It will be seen from the above provision that 'additional tax' is leviable on all public service vehicles on the basis of their 'seating capacity. It is further clear that it is only when the 'seating capacity' of the public service vehicle exceeds six passengers, that the additional tax is leviable. In other words, the additional tax is not leviable if the 'seating capacity' of the vehicle does not exceed six passengers, i.e. if the 'seating capacity' is six passengers or less. The interpretation so far, is not disputed by the petitioners. The dispute has arisen because the temporary permits of the tempos of the petitioners contained a condition that the permit-holder shall not carry more than six passengers in his tempo. The argument of the learned counsel for the petitioner is that, in view of this condition in the permit, the 'seating capacity' of the petitioners' tempos must be regarded as not exceeding six. Hence, no additional tax was leviable. Such an argument can never be accepted. By 'seating capacity' of a vehicle is meant that capacity which is mentioned in the registration certificate of the vehicle. In that way, the expression 'seating capacity' has a fixed connotation. The expression 'seating capacity' cannot be a fluctuating concept, depending upon the number of passengers actually carried in the vehicle. If the number of passengers actually being carried in the vehicle at a given moment, whether in violation or in accordance with the permit, were to determine the 'seating capacity', the same would increase or decrease with respect to the same vehicle at every time of plying making it impossible to determine if the tax would be payable or not. The argument, therefore, that because certain number of passengers could be carried in a vehicle under the condition of the permit, that would be the 'seating capacity' cannot be accepted. How many passengers are being carried in a vehicle, validly or otherwise, cannot determine the 'seating capacity' of the vehicle. The 'seating capacity' of the vehicle has to mean and can only mean the 'seating capacity' mentioned in the registration certificate of the vehicle. We now find that the expression 'seating capacity' has been expressly defined to have this meaning in Clause (d) to Section 2 of M.P. Motor Vehicles Taxation Act, 1947, containing definition clauses.
5. In the present case, it has appeared that the registered 'seating capacity' of the tempos was 7+1. The petitioners misrepresented in their applications for temporary permits that the registered 'seating capacity' of their tempos was only 6 + 1. On that misrepresentation, the petitioners secured the temporary permits in question containing a condition that they would not carry more than six passengers in their tempos. Making use of that device, the petitioners have come forward with the plea that the 'seating capacity' of their vehicles was only six, and, therefore, their vehicles were not liable to levy of additional tax. The reality was that 'seating capacity' of their vehicles was exceeding six, namely, 7 + 1 as mentioned in the registration certificates of the vehicles in question. The additional tax was, therefore, properly leviable on the tempos in question. The challenge to the levy of additional tax contained in the present writ petition fails.
6. For the foregoing reasons, the present writ petition is dismissed. The petitioners shall pay the costs to the respondents. Counsel's fee Rs. 250/- if certified.