Rajasthan High Court - Jodhpur
Shaitan Singh vs State (Transport) & Ors on 2 November, 2011
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL WRIT PETITION NO.5090/2011 - Shaitan Singh V/s State of Rajasthan
Order dtd.2/11/2011
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR.
S.B. CIVIL WRIT PETITION NO.5090/2011
(Shaitan Singh V/s State of Rajasthan and ors.)
Date of order : 2nd November, 2011
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Dr.A.A.Bhansali, for the petitioner.
Ms. Pratishtha Dave, for the respondents.
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1. By this writ petition, Annex.13 notice for demand of road tax for a period from 1.3.2011 to 31.5.2011 in respect of bus No. RJ-19-PA/3411 amounting to Rs.4,80,084/- has been challenged by the petitioner.
2. The only ground of challenge in the present writ petition is that the respondent No.2 - DTO, Jodhpur forwarded the report vide communication Annex.11 dtd.16.5.2011 to the DTO, Jaisalmer that the said bus was found to be plying during the period of surrender of documents on 28.2.2011 and therefore, the proceedings for imposition of tax in accordance with Section 4 and Rule 25A of the Rajasthan Motor Vehicle Taxation Rules, 1951 be undertaken in pursuance of said communication. The DTO, Jaisalmer issued a show cause notice to the petitioner vide Annex.12 dtd.2.5.2011, which was served on the assessee on 22.5.2011. According to the petitioner vide Annex.6 receipt dtd.2.5.2011 itself, the petitioner has already S.B. CIVIL WRIT PETITION NO.5090/2011 - Shaitan Singh V/s State of Rajasthan Order dtd.2/11/2011 2/4 paid the entire Road Tax with penalty for the aforesaid period from 1.3.2011 to 31.5.2011, still the respondent No.2 - DTO, Jodhpur issued the impugned demand notice for the aforesaid tax and penalty which is 5 times the demand of tax by the impugned demand notice dtd.24.5.2011 (Annex.13). Aggrieved by the same, the petitioner approached this Court by way of present writ petition.
3. In reply to the writ petition, the Department has contended that since the vehicle was found to be plying during the period of surrender, the demand of tax could be raised against the assessee in terms of Section 4(a)(iii) and Rule 25A (4) of the Rules of 1951.
4. Having heard the learned counsels, this Court is of the opinion that even though the assessment proceedings were initiated by the DTO, Jaisalmer vide Annex.12 and a show cause notice dtd.2.5.2011 in pursuance of communication of DTO, Jodhpur himself vide Annex.11 was issued and tax along with penalty also already stood paid vide Receipt dtd.2.5.2011 itself, there was no occasion for the respondent No.2 - DTO, Jodhpur to straightway issue another demand notice on 24.5.2011 without undertaking any assessment procedure or serving a show cause notice on the assessee for demanding such tax and penalty for the same period, namely, 1.3.2011 to 31.5.2011.
S.B. CIVIL WRIT PETITION NO.5090/2011 - Shaitan Singh V/s State of Rajasthan Order dtd.2/11/2011 3/4
5. Time and again, it has come to the notice of this Court in various cases that the Dist. Transport Officers/ Assessing Officers are straightway issuing demand notices for raising demand of tax and even penalty without giving any opportunity of hearing to the assessee and without passing any speaking adjudication orders or assessment orders. The notice of demand is a consequential demand notice which can be issued only after determining the tax liability of the assessee after giving a reasonable opportunity of hearing to him so that such adjudication orders containing the reasons therein and deciding only the objection of assessee, if any and such orders can be subjected to further judicial review by appellate forums or even by the superior Courts in writ jurisdiction or appeal or revisional jurisdiction.
6. Since the demand raised obviously depends upon the determination of certain questions of facts like the vehicle found plying during the period of surrender of documents, such questions deserve to be determined at the hands of the authorities created under the Act.
7. In the present case, the tax already stood paid for the same period and also another authority, namely, DTO, Jaisalmer had initiated the assessment proceedings for such adjudication, therefore, the issuance of demand notice by the respondent No.2 - DTO, S.B. CIVIL WRIT PETITION NO.5090/2011 - Shaitan Singh V/s State of Rajasthan Order dtd.2/11/2011 4/4 Jodhpur himself who had forwarded the report to the DTO, Jaisalmer for initiation of assessment proceedings cannot be appreciated.
8. Consequently, this writ petition is allowed and the impugned demand notice (Annex.13) dtd.24.5.2010 is quashed. No order as to costs.
[ DR. VINEET KOTHARI ], J.
item No.63 ss/-