Allahabad High Court
Suraj Automobiles Limited Through Its ... vs The Commissioner Of Trade Tax on 12 April, 2006
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. Present two revisions under Section 11 of the U.P. Trade Tax Act (hereinafter referred to as the "Act") are directed against the order of the Tribunal dated 17th August, 1999 relating to the assessment year, 1993-94.
2. Revision No. 1185 of 1999 filed by the applicant and revision No. 703 of 2000 filed by the Commissioner of Trade Tax.
3. In the revision filed by the applicant, the dispute relates to the rate of tax on the three-wheeler from 1.6.1993. The applicant had accepted the tax liability at the rate of five percent, whereas the assessing authority levied the tax at the rate of 10 percent. Assessing authority also demanded the interest under Section 8(1) of the Act treating the tax assessed on such three-wheeler as admitted tax. First appeal filed by the applicant failed. Applicant filed second appeal before the Tribunal. Tribunal by the impugned order partly allowed the appeal. Applicant claimed that the three-wheeler from 1.6.1993 was liable to tax at the rate of five percent. Levy of tax at the rate of 10 percent has been upheld. Tribunal, however, held that the tax levied cannot be treated as admitted tax and the interest under Section 8(1) of the Act cannot be demanded in view of the fact that the applicant all alone contesting the rate of tax bonafidely and at no stage, tax has been admitted.
4. Heard learned Counsel for the parties.
5. Learned Counsel for the applicant submitted that the three-wheeler sold by the applicant was liable to tax at the rate of five percent under Notification No. ST-II-1920/X1-7 (32/90-U.P. Act-15/48-Order-93, dated 28.5.1993.
6. Learned Standing Counsel submitted that the applicant was the manufacturer of three wheeler chassis and had sold as such without body and, thus, liable to tax as chassis of motor vehicle at the rate of 10 percent including surcharge and not at the rate of five percent. He further submitted that the three wheeler sold by the applicant consisting of engine, clutch, chassis, excel, gear box, suspension, brake, wheel etc, though admitted that it was without any body. It is also submitted that it was registered under the Motor Vehicles Act with the registering authority.
7. Heard learned Counsel for the parties.
8. It is useful to refer the relevant notifications relating to the motor vehicle.
Notification No. ST-II-5784/X-10(1)-80-U.P. Act 15/48-Order-81, dated 7.9.1981.
Published in U.P. Gazette, dated 7.9.1981.
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in supersession of all previous notifications issued from time to time under Sub-section (1) of Section 3-A of the Act as it stood before its amendment by the U.P. Sales Tax (Amendment and Validation) Ordinance, 1981 (U.P. Ordinance No. 12 of 1981), the Governor is pleased to declare that, with effect from September 7, 1981, the turnover in respect of the goods specified in column 2 of the Schedule to the notification shall be liable to tax at the point of sale specified in column 3 of the said Schedule at the rate specified against each in column 4 thereof.
SCHEDULE "M" stands for sale by the manufacturer in Uttar Pradesh.
"1" Stands for sale by the importer in Uttar Pradesh.
43(1) Motor vehicles including motor cars, Sale to consumer or 10%
motor taxi cabs, motor cycles, motor Hire purchase
cycle combinations, motor scooters, company financing
mopeds, motorettes, motor omnibuses, the purchase by the
motor vans, motor lorries, motor trucks, consumer.
Jeeps, station wagons and chassis of
Motor vehicles and bodies or tankers
Or motor caravans built or meant for
Mounting on chassis of motor vehicles,
But excluding tractors whether on
Wheels or on tracts.
(2) components, parts and accessories M or I 10%
of vehicles specified in sub-entry (1)
above including tyres and tubes, batteries
and trailers adopted for use alongwith
the said vehicles, other than such tailers
as are predominantly used alongwith
any other vehicles.
9. The aforesaid entry has been amendment by Notification No. 6072 date 30.9.1983 and entry at serial No. 43(1) has been substituted by the following entry:
Notification No.ST-II-6072/X-9 (121)-82-U.P. Act 15/48-Order-83, dated 30.9.1983.
Published in U.P. Gazette, dated 30.9.1983.
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from October 1, 1983, the following amendment in Government Notification No. ST-II-5784/X-10 (1)-80-U.P. Act 15/48-Order-81, dated September 7, 1981:
AMENDMENT In the schedule to the aforesaid notification, for the existing entries in columns 2, 3, & 4 against item No. 43 (1), the following entries columnwise shall be substituted.
43(1) Motor Vehicles including Sale by dealer to 10%
motor cars, motor taxi cabs, consumer or, in the
motor cycles, motor cycle case of sale through
combinations, motor scooters, a hire-purchase
mopeds, motorettes, motor company, to the hire-
omni-buses, motor vans, purchase company
motor lorries, motor trucks, financing the purchase
jeeps, station wagons and by the consumer,
chassis of motor vehicles,
and bodies or tankers orr
motor caravans built or meant
for mounting on chassis of
motor vehicles, but excluding
tractors whether on wheels or
on tracts.
Notification No. ST-II-6606/X-9(66)-84-U.P. Act-XV-48-Order-84 dated 5.12.1984.
Published in U.P. Gazette, dated 5.12.1984.
In Exercise of the powers under the proviso to Clause (d) of Sub-section (1) of Section 3-A of the Uttar Pradesh Sales Tax Act, 1948 U.P. Act No. XV of 1948), read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from December 5, 1984, the following amendments in Government Notification No. ST-II-5784/X-10(1)/80-U.P. Act 15/48-Order-81, dated September 7, 1981:
AMENDMENT In the Schedule to the aforesaid notification, for the entries against sub-item (1) of Serial No. 43, the following entries shall be substituted, namely:
43(1)(a) Fuel-efficient motor cars Sale by dealer to consumer 6%
of engine capacity not or, in the case of sale though
exceeding 1,000 cubic a hire purchase company, to
centimeters, the hire purchase company,
financing the purchase by the
consumer.
Explanation-fuel-efficient
motor car of engine capacity
not exceeding 1,000 cubic
centimeters means a motor
car which is certified to run
not less than 20 kilometres
per litre of petrol by an officer
not below the rank of Joint
Secretary in the Ministry of
Industry (Department of
Heavy Industry), Government
of India, on the basis of the
tests (hereinafter referred to
as the fuel-efficiency test)
carried out by the Vehicle
Research Development
Establishment of the Ministry
of Defence, Ahmednagar
(Maharashtra) of the Automotive
Research Association of India,
Pune (Maharashtra), having
regard to the following, namely:-
(i) the fuel-efficiency test shall
be conducted with a pay load
of 300 kilograms,
(ii) the fuel-efficiency test shall
be conducted using petrol
having an octane level not
exceeding 87, and
(iii) the fuel-efficiency test shall
be carried out on a selected
level test tract at a steady
speed of 50 kilometres per
hour for a minimum stretch
of one kilometer and the
average of 20 runs, comprising
of 10 runs in each direction
shall be taken for carrying
out the test and the test
figures shall be corrected to
sea level altitude and to 25C
ambient temperature.
(b) Motor vehicles including motor Sale by dealer to 10%
car other than those specified consumer, or in the
in sub-item (a) above, motor case of sale through
taxi cabs, motor cycle, motor a hire-purchase company
cycle combinations, motor to the hire-purchase
scooter, mopeds, motorettes, company financing the
motor omnibuses, motor vans, purchase by the consumer.
motor lorries, motor trucks,
jeeps, station wagons and
chassis of motor vehicles and
bodies or tankers or motor
caravans built or meant for
mounting on chassis of motor
vehicles, but excluding tractors
whether on wheels or on tract.
Notification No. ST-II-7317/X-6 (l)-88-I.P. Act XV/48-Order-88, dated 31.10.1988:
Published in U.P. Gazette, dated 31.10.1988 In exercise of the powers under Section 3-A of the U.P. Sales Tax Act, 1948 U.P. Act No. XV of 1948) read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from November 1, 1988, the following amendments in Government Notification No. ST-II-5784/X-10 (1)/80-U.P. Act 15/48-Order-81, dated September 7, 1981.
AMENDMENTS In the Schedule to the aforesaid notification, for the entries at serial numbers 12, 21 and 43(1)(b), the following entries shall respectively be substituted.
43(1)(b) Chassis of buses and Sale by dealer to consumer 6%
trucks. or, in the case of sale through
a hire purchase company
to the hire purchase company
financing the purchase by
the consumer. 10%
(c)Motor Vehicles including Sale by dealer to
motor cars (other than consumer or, in the
those specified in sub-item case of sale through
(a) above, motor taxi cabs, a hire purchase
motor cycles, motor cycle company financing
combinations, motor the purchase by the
scooters, mopeds, motorettes, consumer.
motor omnibuses, motorvans
motor lorries, motor trucks,
jeeps, station wagons and
challis of motor vehicles
(other than those specified
in sub item (b) above, and
bodies or tankers or motor
caravans built or meant for
mounting on chassis of motor
vehicles but excluding tractor
whether on wheel or on tracts.
10. The aforesaid notification No. ST-II-7317/X-6 (1)-88-U.P. Act XV/48-Order-88, dated 31.10.1988 has further been amended by notification No. ST-II-1223/X1-9 (94)/91-U.P. Act 15/48-Order-92, dated 31.3.1992 and the entry at serial No. 43(1)(C) has been substituted by the following entry:
Notification No. ST-II-1223/XI-9 (94)/91-U.P. Act l5/-l8-Order-92, dated 31.3.1992 Published in U.P. Gazette, dated 31.3.1992.
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the Uttar Pradesh Sales Tax Act, 1948 U.P. Act No. XV of 1948), read With Section 21 of the Uttar Pradesh General Clauses Act, 1904 U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from April I, 1992, the following amendment in Government Notification No. ST-II-S784/X-10 (1)/80-U.P. Act 15/48-Order-81, dated September 7, 1981 as amended from time to time:
AMENDMENT In the Schedule to the aforesaid notification,-
(1) in the entry at S. No. 29, in column 2, the following words shall be inserted at the end, namely:-"other than those exempt from tax under any other notification issued under the Act."
(2) In the entry at S. No. 33, in Column 4 for the words and figure "10 percent" the words and figure "4 percent shall be substituted.
(3) for the entry at S. No. 43 (1) (C) the following entries shall be substituted, namely:
43(1)(C) Fuel efficient light commercial Sale by dealer 1.5% motor vehicle having engine to consumer or, capacity between 2,400 cubic in the case of sale centimeters to 4,000 cubic through a hire centimeters and certified as purchase company fuel efficient by an officer to the hire purchase not below the rank of Deputy company financing Secretary to Government of the purchase by the India in the Ministry of consumer.
Industry, Department of Industrial Development on The basis of fuel efficiency Test carried out by the Carried out by the Vehicle Research Development Establishment of the Ministry of Defence, Ahmednagar(Maharashtra) or the Automotive Research Association of India, Pune (Maharashtra) in accordance with the procedure prescribed in Government of India Notification No. 241/86-CH Dated 25.9.1986 and No. 89/90- CE dated 20.3.1990 and such other notifications as may be issued from time to time.
(D) Motor Vehicles including Sale by dealer to 8%
motor cars (other than consumer or, in the
those specified in sub-items case of sale through
(a) and (c) above) and motor a hire purchase
and Motor Taxi cabs, company, to the hire
motorettes, motor omnibuses, purchase company
motor vans, motor lorries, financing the purchase
motor trucks, jeeps, station by the consumer,
wagons and chassis of motor
vehicles (other than those
specified in sub-item (b) above)
and bodies or tankers or motor
caravans built or meant for
mounting on chassis of motor
vehicle but excluding tractors
whether on wheels or on tracts.
(E) Motor cycles, motor cycle Sale by dealer to 10%
Combination, motor scooters consumer or, in the
and mopeds, case of sale through a
hire purchase company
to the hire purchase
company financing
and purchase by the
consumer.
11. The Notification No. ST-II-5784/X-10 (1)/80-U.P. Act 15/48-Order-81, dated September 7, 1981 as amended from time to time has further been amended by Notification No. ST-II-1920/XI-7 (32)/90-U.P. Act-15/48-Order-93, dated 28.5.1993 and the entry at serial no 43(1)(d) has been substituted by the following entry.
Notification No. ST-II-1920/XI-7 (32)/90-U.P. Act-15/48-Order-93, dated 28.5.1993.
Published in U.P. Gazette Extraordinary, dated 29.6.1993.
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from June 1, 1993, the following amendment in Government Notification No. ST-II-5784/X-10 (1)/80-U.P. Act 15/48-Order-81, dated September 7, 1981, as amended from time to time.
AMENDMENT In the Schedule to the aforesaid notification in the entry at S.No. 43,-
(1) In column 4 of sub-item (1) (a) for the figures "7%" the figure "3%" shall be substituted.
(2) For sub-item (1) (d), the following sub-item shall be substituted namely,-
43(1)(d)(1) Motor Vehicles and Motor Sale by dealer to 4%
cars other than those consumer or, in the
specified in sub-item (a) case of sale through
designed for the transport a hire purchase
of less than 10 persons. Company, to the hire
purchase company
financing the purchase
by the consumer.
(2)Motor vehicle including Sale by dealer to 8%
Motor cars (other than consumer, or in the
those specified in sub-items case of sale through
(a), (c) and (d) (1) above) a hire purchase
and motor taxi cabs, company, to the hire
motorettes, motor omni purchase company
buses, motor vans, motor financing the purchase
lorries, motor trucks, by the consumer.
jeeps, station wagons
and chassis of motor
vehicles (other than those
specified in sub-item (b)
above) and bodies or
tankers or motor caravans
built or meant for mounting
on chassis of motor vehicle
but excluding tractors
whether on wheels or on tracts.
12. The claim of the applicant is that the three wheeler is covered under the entry 43 (1) (d) (1) and liable to tax at the rate of four percent, while the claim of the revenue is that it is not covered under the entry 43 (1) (d) (1 ) and is covered under the entry 43 (1) (d) (2) which includes chassis of motor vehicle. Thus. question for consideration whether three-wheeler sold by the applicant without body was chassis of motor vehicle or not or is a complete motor vehicle. If it is chassis of motor vehicle, it is liable to tax at the rate of 8 percent and if it is complete motor vehicle, it is liable to tax at the rate of 4 percent
13. It is useful to consider the definition of word "chassis, motor and vehicle".
Chassis has been defined as follows;
"Chambers: Chasis Noun the frame, wheels and machinery of a motor car: a frame, sash (sash-frame).
Oxford : Chassis-Base frame of carriage, motor car-etc., Webster's: Chassis-The under framework of a motor vehicle including the wheels and engine parts. In radio (a) the framework to which the parts of a radio set, amplifier etc. are attached (b) the assembled frame and parts".
Motor has been defined as follows;
"Chambers: motor Noun, a mover, that which gives motion; a machine whereby some source of energy is used to give motion or perform work especially an internal combustion engine or a machine for converting electrical energy into mechanical energy; a motor car, adjective giving or transmitting motion; driven by a motor, of, for, with relating to motor vehicles; as Motor bus, car, coach cycle, lorry etc., one driven by a motor.
OXFORD; Motor- What imparts motion, machine supplying motive power for carriage or vessel especially Internal combustion engine as- cycle, cab etc. WEBSTER'S: Motor Noun, a mover, (Latin a mover, from movers, to move) anything that produces or imparts motion, an engine specially an internal combustion engine for propelling a vehicle, a vehicle propelled by an engine especially a motor car, an automobile, in electricity a machine for converting electrical energy into mechanical energy. Adjective, producing or imparting motion, of or powered by a motor or motors; as a motor vehicle.
Vehicle has been defined as follows;
CHAMBERS: A means of conveyance or transmission, a structure in or on which person or things are transported especially by land.
OXFORD: Carriage conveyance of any kind used on land.
WEBSTER'S: Any device on wheels or runners for conveying persons or objects as a chart, sled automobiles etc, any means of carrying, conveying or communicating."
Motor vehicle has been defined in Motor Vehicles Act, 1988 as follows;
"Motor Vehicle" means any mechanically propelled vehicle adapted for use upon road whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding (twenty five) cubic centimeters.
Motor vehicle has been defined in the Law Lexicon as follows:
"Motor vehicle include a vehicle, carriage or other means of conveyance propelled, or which may be propelled, on a road by electrical or mechanical power entirely or partially.
14. From the aforesaid definition, it is clear that the motor vehicle is structure on which the person or things are transported, while the chassis is a base frame of a carriage motorcar including wheel and engine parts. Admittedly, the applicant had sold the frame with wheel, engine etc.. without any body. Thus, it was a chassis and not motor vehicle It is not capable to transport a person or thing. Thus, the view of the Tribunal that the applicant had sold the chassis and not motor vehicle is liable to tax at the rate of 8 percent plus surcharge is justified and is accordingly upheld. Tribunal further recorded the finding that the applicant had admitted the liability of tax at the rate of 5 percent and was bonafidely disputing the tax at the rate of 10 percent. Thus, the demand of interest under Section 8(1) of the Act is not justified. I do not see any reason to interfere with the findings recorded by the Tribunal.
15. In the result, both the revisions fail and are, accordingly, dismissed.