Orissa High Court
Odisha Automobiles Dealers ... vs State Of Odisha And Another on 18 May, 2017
Equivalent citations: AIR 2018 (NOC) 11 (ORI.)
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 5648 OF 2017
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
-----------
AFR
Odisha Automobiles Dealers ........ Petitioner
Association (OADA).
-Versus-
State of Odisha and ......... Opp. Parties
Another.
For petitioner : Mr. A.K. Parija, Sr. Advocate along with
M/s S. Mohanty, S.P. Sarangi,
D.K. Das, P.K. Das, V.Mohapatra,
and T. Pattnaik, Advocates.
Mr. R.P. Kar.
Mr. J. Pal.
Mr. G. Mukherjee.
Mr. S. Pani
(for petitioners in different connected
writ petitions)
For opp. parties : Mr. B.K. Sharma.
Standing Counsel
(Transport Department)
---------------
PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing: 02.05.2017 : Date of judgment:18.05.2017
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2
DR. B.R. SARANGI, J. Odisha Automobiles Dealers Association
("OADA"), the petitioner herein, being a trust registered under
the District Sub-Registrar, Khurda, has filed this writ application
seeking to challenge the communication dated 29.03.2016 in
Annexure-2 issued by the Transport Commissioner-cum-
Chairman, State Transport Authority (STA) instructing all the
Regional Transport Officers (RTOs) to collect tax from the
dealers/manufacturers on the basis of the total number of
vehicles possessed and registered during the entire year, as well
as consequential demand notices in Annexure-3 series issued by
the RTOs.
2. At the outset, it is of relevance to mention that
several writ petitions had been filed by individual dealers
challenging the selfsame circular dated 29.03.2016 on different
grounds. Although all those writ petitions were taken up for
hearing together with this writ petition, with the consent of
learned counsel for the parties, this writ petition was chosen as
a lead case to be decided first by giving opportunity to all the
counsel appearing in different writ petitions to present their
case so that the judgment which would be passed in the instant
writ petition would govern the batch of cases. Since pleadings
3
between the parties have been exchanged, with the consent of
learned counsel appearing for parties, this writ petition is being
disposed of finally at the stage of admission.
3. The communication dated 29.03.2016 in Annexure-2
issued by the Transport Commissioner-cum-Chairman, State
Transport Authority (STA), by which the petitioner trust is
essentially aggrieved, reads thus:
"No. 4775 / TC
LVI -41/2016 Dated 29.03.16
To
All Regional Transport Officers
Sir,
It is observed that there is huge leakage of M.V. revenue at
dealer/manufacturer points while collecting tax for vehicle in
their possession.
As per the Rule-35 of CMVR-1989 an application for the
grant/renewal of trade certificate shall be made in form-16
accompanied by appropriate fees as specified in Rule-81 by the
dealer/manufacturer. Separate application shall be made for
each class of vehicle as per rule 34 of CMV Rules. On receipt of
application from the dealers the grant/renewal of trade certificate
is issued under Rule-35 of CMVR-1989 by the Registering
Authority to the dealers/manufacturers.
Accordingly under Rule-36 of OMV Rule 1993 (1) The
manufacturer/ dealer shall furnish to the registering Authority
having jurisdiction in the locality with the information in Form
XIII & XIV, in respect of the vehicles received in stock & sold by
him during the every month by 15th of the succeeding months.
(2) The manufacturer/dealer should furnish the copy of
the certificate in form-21 prescribed under rule-47 of CMV Rule-
1989 to the registering authority & the concerned region when
the vehicle is intended to be registered.
All the dealers or manufacturers are bound to submit
monthly returns in form-XIII & XIV under rule- 36 of OMV-1993.
A certificate in form-XIV are being furnished to the registering
authority that the maximum nos of vehicles covered under the
trade certificate has never been exceeded at any point of time.
This need to be obtained from each dealer/ manufacturer,
scrupulously.
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Section-5 of OMVT act 1975 entails that - Notwithstanding
the provisions contained in [Section 3, 3-A, 4, 4-A or 4-B], a tax
at the annual rate specified below shall be paid in advance by a
manufacture of dealer in Motor vehicles in respect of the vehicles
in his possession in the course of his business as such
manufacture or dealer under the authorization of trade certificate
granted under the Motor Vehicles Rules.
While reviewing the mv revenue collection of different RTOs,
it is found that the tax are being collected in advance from the
dealers for the nos. of vehicles mentioned in their trade certificate
which is not in conformity with the total no of registration of
vehicles made by the dealers. You are therefore directed to collect
the tax from the dealers/manufacturers on the basis of total no
of vehicle possessed & registered during the entire year by the
dealer.
Further, you are instructed to be more vigilant at dealer
point through regular checking & conducting raids to collect the
tax for the vehicles possessed by the dealers.
Transport-Commissioner,
Odisha"
4. Mr. A.K. Parija, learned Sr. Counsel appearing along
with Mr. S. Mohanty, learned counsel for the petitioner argued
with vehemence that the demand made by the R.T.Os. to pay
the trade certificate tax on number of vehicles sold, rather than
the number of vehicles possessed, during 12 months period is
contrary to law. During pendency of this writ petition, demands
were raised forcing the dealers to pay the tax prior to 2016,
though the circular had come into force w.e.f. 29.03.2016.
Therefore, the demands so raised, on the basis of total
number of vehicles possessed and registered during the
entire year, prior to issuance of circular, are absolutely
misconceived. As per the provisions contained in Motor Vehicles
Act, 1988 and Rules framed thereunder, no person shall ply a
5
vehicle without registration, but the dealers are permitted to ply
the vehicle without registering for a specific purpose as per the
proviso to Section 39 of the Motor Vehicles Act, 1988. The trade
certificate holders/dealers are not required to make registration
of the vehicle, but at the same time they are not allowed to
keep in possession the vehicles in excess of what has been
granted under the trade certificate. Prior to 29.03.2016, there
was not a single instance of demand raised on the basis of the
sale of the number of vehicles by the dealer, save and except
the levy of tax only on the basis of trade certificate for
possession of the vehicles at a given point of time. The
assessment, having been done by the assessing officer, namely,
the RTO, construing the number of vehicles sold in a year in
excess of vehicles in possession pursuant to trade certificate
issued by the authority, is without any authority of law.
Referring to various provisions of Motor Vehicles Act, 1988;
Central Motor Vehicles Act, 1988; Central Motor Vehicles Rules,
1989; Orissa Motor Vehicles Taxation Act, 1975 and Orissa
Motor Vehicles Taxation Rules, 1976, it is contended with
vehemence that the dealers are not liable to pay the trade
certificate tax as per Section-5 of the Orissa Motor Vehicles
6
Taxation Act, 1975, because a dealer never possessed any
vehicle in excess of the trade certificate granted in its favour at
a given point of time. For the vehicles sold, tax having been
received by the authority, with their registration, dealers cannot
be liable to pay registration tax. In view of such position, the
demand so raised, being illegal, arbitrary, unreasonable and
unconstitutional, is liable to be quashed.
5. Mr. R.P. Kar, learned counsel appearing for a set of
individual dealers contended that the tax for possession of
vehicles is being assessed under Section 5 of the Orissa Motor
Vehicles Taxation Act, 1975, and for registration under Sections
3, 4A, 4B of the said Act. If the vehicles, which have been
registered, are sold from a particular dealer in a year, it will
construe that the said dealer was in possession of the vehicles
beyond the number of vehicles admissible under the trade
certificate issued, and for that the said dealer is liable for
clubbed tax, or hybrid tax, which the authority cannot do.
6. Mr. J. Pal, learned counsel appearing for another set
of dealers contended that in view of the provisions contained
under Section 5 of the Orissa Motor Vehicles Taxation Act, 1975,
notwithstanding the number of vehicles sold, a dealer is liable to
7
pay tax only against those covered under the trade certificate in
advance and there is no rationality of vehicles sold and vehicles
covered under the trade certificate. Considering the number of
vehicles sold and in possession of the dealer in a year, no
demand can be raised on the basis of circular issued on
29.03.2016and, as such, the demands so raised cannot sustain in the eye of law and are liable to be set aside.
7. Mr. G. Mukherjee, learned counsel appearing for another set of dealers contended that as per Rule-33 of the Central Motor Vehicle Rules, 1989, a dealer is exempted from registration of vehicles, subject to condition that, he obtained a trade certificate from the registering authority having jurisdiction of the area in which his place of business comes. Therefore, a dealer is liable for trade certificate tax for possession of the vehicles as per the certificate issued to it to keep the maximum number of vehicles at a given point of time mentioned therein for the purpose of sale.
8. Mr. S. Pani, learned counsel appearing for another set of dealers contended that the dealers, who had kept in excess of the vehicle in possession beyond the trade certificate granted by the authority, were issued with no show cause 8 notice, when demands were raised by the authorities. As such, the demands so raised cannot legally sustain.
9. Mr. B.K. Sharma, learned Standing Counsel for the Transport Department contended that the circular dated 29.03.2016 issued by the Transport Commissioner to the R.T.Os., which is challenged by the petitioner, is an inter- departmental communication and its copy was not supposed to be available with the dealers. As such, the said communication made by the authority concerned, being well within its competence, is not open to challenge. Furthermore, the demand so raised in the shape of tax and penalty is appealable and revisable, in view of the provisions contained in the Orissa Motor Vehicles Taxation Act, 1975 and Rules framed thereunder, which is covered by the judgment of this Court in Sujit Kumar Dhir v. R.T.O., Keonjhar, 2014 (II) OLR 1070. It is further contended that though the trade certificate is issued to a dealer to possess a fixed number of vehicles at a given point of time, ultimately at the end of a year if it is found that the dealer has possessed more number of vehicles than granted under the trade certificate and subsequently sold the same, then such dealer will be liable to pay the trade certificate tax. 9 Similarly, even if at a given point of time the dealer does not exceed the number of vehicles possessed pursuant to the trade certificate, but at the end of the year if it is found that the said dealer has sold beyond the number of vehicles indicated in trade certificate, for which number of vehicles indicated in trade certificate the advance tax has already been received, then also he will be liable to pay the trade certificate tax, as he had possessed such number of vehicles which had been sold by him. He also contended that since the vehicles are movable properties, the provisions of the Sale of Goods Act, 1930 are applicable. Therefore, the possession, sale and registration are to be read conjointly, as the sale and registration are intrinsically connected to each other. When a vehicle is sold, a sale certificate under Form-21 is issued and accordingly, registration is made under Form-20. The sale certificate is to be granted by the manufacturer or the dealer under the prescribed Form-21 and, as per the provisions contained in Section-6, if the vehicle is owned or possessed, then the dealer is liable to pay the trade certificate tax. It is admitted that if at a given point of time a dealer is found that he has kept vehicles in excess of certificate issued, the penalty has to be imposed. As 10 such, the authorities have not committed any illegality or irregularity in raising such demand against the dealers in consonance with the circular issued on 29.03.2016 so as to warrant interference by this Court at this point of time.
10. For just and proper adjudication of the case, the relevant provisions, which are required to be considered for this case, are reproduced below:-
"Section 2(8) of the Motor Vehicles Act, 1988 "dealer" includes a person who is engaged-
[(a) ***]
(b) in building bodies for attachment to chassis; or
(c) in the repair of motor vehicles; or
(d) in the business or hypothecation, leasing or hire purchase of motor vehicles.
Section 39 of the Motor Vehicles Act, 1988 Necessity for registration- No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
Section 191 of the Motor Vehicles Act, 1988 Sale of vehicle in or alteration of vehicle to condition contravening this Act. - Whoever being an importer of or dealer in motor vehicles, sells or delivers or offers to sell or deliver a motor vehicle or trailer in such condition that the use thereof in a public place would be in contravention of Chapter VII or any rule made thereunder or alters the motor vehicle or trailer so as to render its condition such that its use in public place would be in 11 contravention of Chapter VII or any rule made thereunder shall be punishable with fine which may extend to five hundred rupees :
Provided that no person shall be convicted under this section if he proves that he had reasonable cause to believe that the vehicle would not be used in a public place until it had been put into a condition in which it might lawfully be so used.
Section 192 of the Motor Vehicles Act, 1988 Using vehicle without registration. - (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both :
Provided that the Court may, for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries of for the Transport of food or materials to relieve distress or of medical supplies for a like purpose.
Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.
(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in Sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.
Section 2 (g) of the Central Motor Vehicle Rules, 1989 "Trade certificate" means a certificate issued by the registering authority under rule 35.
Rule 33 of the Central Motor Vehicle Rules, 1989
33. Condition for exemption from registration.--For the purpose of the proviso to section 39, a motor vehicle in the possession of a dealer shall be exempted from the necessity of registration subject to the condition that he obtains a trade certificate from the registering authority having jurisdiction in the area in which the dealer has his place of business in accordance with the provisions of this Chapter. Rule 34 of the Central Motor Vehicle Rules, 1989 Trade certificate.--(1) An application for the grant or renewal of a trade certificate shall be made in Form 16 and shall be accompanied by the appropriate fee as specified in rule 81.
(2) Separate application shall be made for each of the following classes of vehicles, namely:--
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(a) motor cycle;
(b) invalid carriage;
(c) light motor vehicle;
(d) medium passenger motor vehicle;
(e) medium goods vehicle;
(f) heavy passenger motor vehicle;
(g) heavy goods vehicle;
(h) E-rickshaw;
(i) E-cart;
(j) any other motor vehicle of a specified description.
Rule 35 of the Central Motor Vehicle Rules, 1989 Grant or renewal of trade certificate.--(1) On receipt of an application for the grant or renewal of a trade certificate in respect of a vehicle, the registering authority may, if satisfied that the applicant is a bona fide dealer and requires the certificates specified in the application, issue to the applicant one or more certificates, as the case may be, in Form 17 71[within thirty days from the date of receipt of such an application] and shall assign in respect of each certificate a trade registration mark consisting of the registration mark referred to in the notification made under sub-section (6) of section 41 and followed by two letters and a number containing not more than three digits for each vehicle, for example:-
AB--Represent State Code.
12--Registration District Code.
TCI--Trade certificate number for the vehicle. (2) No application for trade certificate shall be refused by the registering authority unless the applicant is given an opportunity of being heard and reasons for such refusal are given in writing.
Rule 37 of the Central Motor Vehicle Rules, 1989 Period of validity.--A trade certificate granted or renewed under rule 35 shall be in force for a period of twelve months from the date of issue or renewal thereof and shall be effective throughout India. Rule 39 of the Central Motor Vehicle Rules, 1989 Use of trade registration mark and number.--(1) A trade registration mark and number shall not be used upon more than one vehicle at a tune or upon any vehicle other than a vehicle bona fide in the possession of the dealer in the course of his business or on any type of vehicle other than the one for which the trade certificate is issued. (2) The trade certificate shall be carried on a motor vehicle in a weatherproof circular folder and the trade registration mark shall be exhibited in a conspicuous place in the vehicle. Rule 41 of the Central Motor Vehicle Rules, 1989 Purposes for which motor vehicle with trade certificate may be used.-- The holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than the following:--
(a) for test, by or on behalf of the holder of a trade certificate during the course of, or after completion of, construction or repair; or
(b) for proceeding to or returning from a weigh bridge for or after weighment, or to and from any place for its registration; or 13
(c) for a reasonable trial or demonstration by or for the benefit of a prospective purchaser and for proceeding to or returning from the place where such person intends to keep it; or
(d) for proceeding to or returning from the premises of the dealer or of the purchaser or of any other dealer for the purpose of delivery; or
(e) for proceeding to or returning from a workshop with the objective of fitting a body to the vehicle or painting or for repairs; or if) for proceeding to and returning from airport, railway station, wharf for or after being transported; or
(g) for proceeding to or returning from an exhibition of motor vehicles or any place at which the vehicle is to be or has been offered for sale; or
(h) for removing the vehicle after it has been taken possession of by or on behalf of the financier due to any default on the part of the other party under the provisions of an agreement of hire-purchase, lease or hypothecation.
Rule 42 of the Central Motor Vehicle Rules, 1989 Delivery of vehicle subject to registration.--No holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent.
Rule 43 of the Central Motor Vehicle Rules, 1989 Register of trade certificate.--(1) Every holder of a trade certificate shall maintain a register in Form 19 in duplicate which shall be in a bound book, with pages numbered serially.
(2) The particulars referred to in Form 19 except the time of return under column 7, shall be entered in the register before the commencement of each trip by the holder of the trade certificate or his representative and a duplicate copy of Form 19 made prior to the commencement of each trip shall be carried during the trip by the driver of the vehicle and shall be produced on demand by any officer empowered to demand production of documents by or under the Act.
(3) The holder of a trade certificate shall, at the end of a trip, fill in column 7 of Form 19 (both original and duplicate), and the register and the duplicate shall be open for inspection by the registering authority. Rule 47 of the Central Motor Vehicle Rules, 1989 Application for registration of motor vehicles.--(1) An application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of 73[seven days] from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by--
(a) sale certificate in Form 21;
(b) valid insurance certificate;
(c) copy of the proceedings of the State Transport Authority or Transport Commissioner or such other authorities as may be prescribed by the State Government for the purpose of approval of the design in the case of a trailer or a semi-trailer;
(d) original sale certificate from the concerned authorities in Form 21 in the case of ex-army vehicles;
(e) proof of address by way of any one of the documents referred to in rule 4;
(f) temporary registration, if any;
(g) road-worthiness certificate in Form 22 from the manufacturers, 75[Form 22-A from the body builders];
[(h) custom's clearance certificate in the case of imported vehicles along with the licence and bond, if any:
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Provided that in the case of imported vehicles other than those imported under the Baggage Rules, 1998, the procedure followed by the registering authority shall be same as those procedure followed for registering of vehicles manufactured in India, and;
(i) appropriate fee as specified in rule 81.
(j) proof of citizenship;
(k) proof of legal presence in India in addition to proof of residence in case of foreigners;
Provided that for a period of six months, on and from the date of publication of the Central Motor Vehicle (Amendment) Rules, 2015, in respect of the models of the E-rickshaws and E-carts existing prior to publication of the Central Motor Vehicles (Sixteenth Amendment) Rules, 2014 and the notification published vide S.O. 2590(E), dated 8th October, 2014, the application for registration under this sub-rule shall be made in Form 20 to the registering authority within a period of ninety days after obtaining the type approval certificate and shall be accompanied by -
(i) road-worthiness certificate in Form 22 to be issued by manufacturer or dealer or registered E-rickshaw or E-cart Association; and
(ii) Sale certificate in Form 21 to be issued by manufacturer or dealer or registered E-rickshaw or E-cart Association for presentation along with the application for registration.
(1) Technical specifications and any other document as may be required by the registering authority in respect of the modular hydraulic trainer.
(2) In respect of vehicles temporarily registered, application under sub- rule(1) shall be made before the temporary registration expires. [(3) On and from the 1st January, 2015, every vehicle manufacturer shall, in accordance with Form 20, Form 22 and Form 22A, upload the vehicle details in the portal https://www.vahan.nic.in/makermodel.] *(3) The modular hydraulic trailer, registered under these rules shall ply in public place in laden condition subject to such other conditions as may be determined by the Central Government from time to time. Section 3, 3(A), 4, 4(A) & 5 of the Orissa Motor Vehicle Taxation Act, 1975
3. Levy of tax - (1) Subject to the other provisions of this Act, 2[***] there shall be levied on every motor vehicle used or kept for use within the State a tax at the rate specified in [Schedule-I] [Schedule-III];
(2) The State Government may be notification from time to time, increase the rate of tax specified in [Schedule-I] [Schedule- III];
Provided that such increase shall not exceed fifty percent of the rate specified in [Schedule-I] [Schedule-III];
(3) All references made in this Act to [Schedule-I] [Schedule-III]; shall be construed as references to [Schedule-I] [Schedule-III] as for the time being amended in exercise of the powers conferred by this section.
3.A. Levy of additional tax - (1) Subject to the other provisions of this Act, [there shall be levied on every public service vehicle and goods carriage] used or kept of use within the State, an additional tax at a rate specified in [Schedule-I].
(2) The State Government may, by notification from time to time, increase the rate of additional tax specified in[Schedule-I]; 15
Provided that such increase shall not exceed fifty percent of the rate specified in [Schedule-I].
(3) The provisions contained in Sub-sec. (3) of Sec. 3[***] Sub-sec. (1) to (3) of Sec. 4, Secs. 6 and Secs 11 to 20 shall mutatis mutandis apply in relation to the additional tax payable under Sub-sec. (1) as they apply in relation to the tax payable under Sec. 3]
4. Payment of tax and declaration of liability - (1) The tax shall be paid in advance within such time and such manner as may be prescribed, to the Taxing Officer by the registered owner of person having possession or control of the vehicle.
(2) The period in respect of which tax is to be paid under Sub- sec. (1) may be -
(a) a year at the rate specified in [Schedule-I] hereinafter referred to as the annual rate; or
(b) one or more quarters at one-fourth of the annual rate for each quarter; or
(c) any period less than a quarter expiring on the last date of any quarter at one-twelfth of the annual rate of every month or part of a month comprising such period.
Provided that in the case of a vehicle and annual rate of tax in respect of w3hich does not exceed [five hundred rupees] the tax shall be paid either annually or for a period of two quarters at a time.
[Provided further that the State Government may, by notification, allow payment of tax monthly in respect of any motor vehicle or class of motor vehicles and in such case one-twelfth of the annual rate of tax specified in [Schedule-1] is to be paid for each month] and (3) Notwithstanding anything contained in this section, the State Government may, by notification, from time to time, direct that a temporary tax token may be issued in respect of a [vehicle] plying temporarily in the State on payment of such tax and subject to such conditions as may be specified in the notification.
[X X X ] (4) At the time of making of payment of tax for any period under Sub-sec (1) -
(a) a valid certificate of registration and a valid certificate of insurance in respect of the motor vehicle complying with the provisions of the Motor Vehicles Act, shall be produced before the Taxing Officer; and
(b) there shall be delivered to the Taxing Officer a declaration in duplicate in the prescribed form with the prescribed particulars specifying the Taxing Officer from whom the tax token, if any, had been last obtained and showing that the tax payable for the vehicle is the amount actually paid.
4-A. Levy and payment of one-time tax - [(1) Notwithstanding anything contained in Sections 3 and 4 of this Act, but subject to the other provisions of this section, there shall be levied and paid in respect of every vehicle of the descriptions specified in items 1 and 2 and every Motor Vehicle (being a motor car, Omnibus and Motor Cab) covered by item 6 of Schedule -1 which is used personally or kept for personal use, one time tax at the rate equal to a standard rate as specified in Schedule-III or five per centum of the cost of the vehicle whichever is higher.
Provided that in the case of a vehicle which is on road in State of Orissa, whether purchased or acquired inside or outside the State of Orissa, one time tax shall be at the rate as specified in Schedule-III;
Provided further that the vehicles in respect of which one time tax has already been realized shall not be liable to pay tax.
(2) The levy and payment of one-time tax shall be for the life-time of the vehicle in respect of which such tax is paid. 16
(3) The levy and payment of one-time tax shall be compulsory in respect of vehicles registered on or after the appointed date and optional in respect of the vehicles registered prior to that date.
(4) Where, after payment of one-time tax, a vehicle is removed to any other state on transfer of ownership or change of address, or its registration is cancelled for any reason other than that mentioned in Sub- sec. (5) of Sec. 55 of the Motor Vehicles Act 59 of 1988 [***] the owner of the vehicle shall be entitled to a refund which shall be the balance of the one-time tax paid by him under Sub-sec. (1) as may remain after deducting from such tax one-tenth thereof for each completed year or part thereof commencing on the date from which the one-time tax was paid till the date on which the vehicle is so removed or its registration is so cancelled or the vehicle is so altered, as the case may be :
[***] [***] [***] (6) The provisions of Secs. 10 and 16 relating to temporary discontinuance of the use of vehicle and rebate on payment of tax, respectively, shall not apply to a vehicle in respect of which one-time tax is leviable under this section.
Section 5 of Motor vehicles Taxation Act, 1975
5. Tax payable by Manufacturers and Dealers - Notwithstanding the provision contained in [Section 3, 3-A, 4, 4-A or 4-B], a tax at the annual rate specified below shall be paid in advance by a manufacturer of dealer in motor vehicles in respect of the vehicles in his possession in the course of his business as such manufacturer or dealer under the authorization of trade certificate granted under the Motor Vehicles Rules.
[Description of Motor vehicles Annual rate
1. Motor Cycles -
(a) where the total number of vehicles ... Rs. 2000.00
does not exceed ten
(b) where such total number exceeds ten ... Rs.2000.00
plus
Rs. 200.00 for each
Vehicle exceeding ten.
2. Motor vehicles other than Motor Cycles
Weighing not more than 3048 kilograms
Unladen-
(a) where the total number of vehicles ... Rs. 5,000.00
Does not exceed ten
(b) where such total number exceeds ten ... Rs.5000.00
plus
Rs. 500.00 for each
Vehicle exceeding ten
3. Motor vehicles weighing not more than
3048 kilograms unladen-
(a) where the total number of vehicles ... Rs. 10,000.00
Does not exceed ten
(b) where such total number exceeds ten... Rs.10,000.00 plus
Rs. 1000.00 for each
Vehicle exceeding ten
(emphasis supplied)
Section 14 of the Orissa Motor Vehicle Taxation Act, 1975
14. Recovery of tax and penalty - (1) Any tax due and not paid as provided for by or under this At and any sum directed to be 17 recovered by way of penalty under Sec. 13 may be recovered as arrears of public demand [or in accordance with the provisions contained in Schedule-II] [1-A Any tax levied under this Act shall be deemed to be a first charge on the vehicle to which it relates.] (2) The motor vehicle in respect of which the tax is due or in respect of which any sum has been directed to be recovered as penalty under Sec. 13 or its accessories may be distrained and sold in pursuance of this section whether or not such vehicle or accessories is or are in the possession or control of the person liable to pay the tax or penalty.
(3) Notwithstanding anything contained in this Act or the rules made thereunder, no person shall be liable to tax or penalty accruing for any period on account of any motor vehicle, the tax or penalty due in respect of which as already been paid by some other person. Section 20 of the Orissa Motor Vehicle Taxation Act, 1975 Offences - (1) Whoever -
(a) uses a motor vehicle or keeps a motor vehicle for use without having paid the tax or [differential tax] in respect of such vehicle; or
(b) delivers in respect of a motor vehicle any declaration or undertaking wherein the particulars required by or under this Act to be therein set for the are not fully and truly stated, shall, on conviction, be punishable with fine not exceeding, for the first offence twice and for every subsequent offence, four times the amount of annual tax payable for the vehicle in respect of which the offence is committed. (2) Whoever not being a person liable to pay tax drives a motor vehicle knowing or having reason to believe that the tax or additional tax payable in respect of such vehicle has not been paid shall, on conviction, be punishable for the first offence with fine which may extend to three hundred rupees and for every subsequent offences with fine which may extend to five hundred rupees. Rule 7 of the Orissa Motor Vehicles Taxation Rules, 1976
7. For the vehicles in respect of which no [tax/additional tax] is payable under Sec. 8, the declaration may be filed in Form 'BB' along with the documents prescribed and the notification in which the exemption of tax for the vehicle has been notified.
Provided that no such declaration shall be filed or [tax/additional tax] token granted in respect of the vehicle which is declared off road;
Provided further that dealers of manufacturers paying [tax/additional tax] under Sec. 5 shall submit the declaration in plain paper stating legibly therein category wise make and model of the vehicles and maximum number thereof for which [tax/additional tax] is being paid and certify the maximum number has never been exceeded at any point of time during the previous quarters, along with trade certificate and invoices, dispatch note instead of registration certificate and insurance certificate. (emphasis supplied) Rule 36 of the Orissa Motor Vehicles Rules, 1993
36. Furnishing of return by the manufacturer or dealer - (1) The manufacturer or dealer shall furnish to the registering authority 18 having jurisdiction in the locality the information in Form XIII and Form XIV in respect of the vehicles received in stock and sold by him during every month by fifteenth of the succeeding month.
(2) The manufacturer or dealer shall furnish a copy of the sale certificate in Form 21 prescribed under Rule 47 of the Central Motor Vehicles Rules, 1989 to the registering authority of the concerned region where the vehicle is intended to be registered.
FORM XIII [See Rule 36 (1) ] Furnishing of information in respect of the vehicles received in stock by manufacturer or dealer
1. Name of the Dealer of Manufacturer (Trade Certificate holder) with address:
2. Trade Certificate Nos.
3. Details of receipt of stock (Category-wise) Sl. Date of No. of units Invoice No. Remarks No. Receipt received and date (1) (2) (3) (4) (5) Signature of Trader Certificate Holder FORM XIV [See Rule 36 (1)] Furnishing of information in respect of vehicles sold by manufacturer or dealer
1. Name of the Dealer or Manufacturer (Trade Certificate Holder) with address.
2. Trade Certificate No.
3. Details of Sale (Category-wise) Date Sale Name and Engine Chasis Trade R.T.O. to of letter address of No. No. Regn. whom sale No. purchaser Mark endorsed for allotted Registration (1) (2) (3) (4) (5) (6) (7) Signature of Trader Certificate Holder Certificate This is to certify that the maximum number of vehicles covered under the trade certificates has never been exceeded at any point of time.
Signature of Trader Certificate Holder Rule 177 of Orissa Motor Vehicles Rules, 1993 19 All the Officers of the Orissa Motor Vehicles Department shall be Subordinate to the Commissioner and shall exercise the powers and perform the duties as assigned to them from time to time under the Act and these rules and the notification issued thereunder. They shall carry out the instructions and order issued by the Commissioner from time to time."
11. The members of the petitioner trust, being the dealers within the meaning of Section 2(8) of the Motor Vehicles Act, 1988, are engaged in the business of hypothecation, leasing or hire-purchase of motor vehicles. In view of the provisions contained under Section 39 of the Motor Vehicles Act, 1988, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. Thereby, restriction has been imposed with regard to plying of a vehicle without any registration number by the person or even owner of a vehicle in a public place. But, proviso to Section 39 authorized a dealer, who is in possession of the vehicle, to ply a vehicle without registration subject to conditions as prescribed by the Central Government. In other words, therefore, the restriction imposed to ply a vehicle by a person or owner is not applicable 20 to a dealer who possessed a motor vehicle subject to condition prescribed by the Central Government without any registration. The motor vehicle cannot be driven or caused to be driven or caused to be used in any public place or any other place for any of the parties indicated therein without requisite registration. Section 40 thereof deals with registration where to be made, where as Section 41 deals with registration how to be made. Section 42 deals with special provision for registration of motor vehicles of diplomatic officers, whereas Section 43 deals with temporary registration and Section 44 deals with production of vehicle at the time of registration. Section 45 deals with refusal of registration or renewal of the certificate of registration. Section 191 deals with sale of vehicle in or alteration of vehicle to condition contravening the Act. If any dealer contravenes Chapter-VII or any rule made thereunder, shall be punishable with fine which may extend to hundred rupees. Section 192 deals with using vehicles without registration, which clearly specifies that whosoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 39 shall be punishable as per the provisions mentioned therein.
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12. Chapter-III of the Central Motor Vehicles Rules, 1989 deals with registration of motor vehicle. Under sub-heading "trade certificate", Rule-33 puts a condition for exemption from registration as per the proviso to Section 39, which provides that if a motor vehicle in the possession of a dealer/ manufacturer shall be exempted from the necessity of registration subject to the condition that he obtains a trade certificate from the registering authority having jurisdiction in the area as his place of business in accordance with the provisions of the chapter. Rule-34 deals with trade certificate, which specifically provides that application for grant or renewal of a trade certificate, shall be made in Form-16 appended to the rules. Clause-5 of Form-16 clearly states the number of certificates required. Meaning thereby, when an application is submitted by a dealer to a registering authority concerned, he has to furnish detailed information as prescribed in Form-16. In addition to the same, prescribed the number of certificates required for him and the same has to be made by way of declaration. Therefore, the trade certificate has to be granted on the basis of application submitted by the dealer requiring him to provide the number of certificates to be granted by the 22 registering authority for the purpose of trade certificate. On consideration of the said application in Form-16 under Rule- 34(1), the registering authority in turn granted a form of trade certificate in Form-17 under Rule-35(1) wherein it is specified at sl.no.1, the serial number of certificate and at sl.no.2, the full name and address of certificate holder.
13. The validity of the trade certificate granted under Rule-35 shall be in force for a period of twelve months from the date of issue or renewal thereof and shall be effective throughout India as per the provisions under Rule-37. Rule-39 clearly speaks about use of trade registration mark and number shall not be used upon more than one vehicle at a time or upon any vehicle other than a vehicle bona fide in the possession of the dealer in course of his business or on any type of vehicle other than the one for which the trade certificate is issued. Rule-41 clearly provides that the holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than the conditions to (a) to (h). The said conditions are in consonance with the provisions contained in proviso to Section 39 of the Motor Vehicles Act, 1988 read with Rule-33 of the Rules, 1989. Except the condition stipulated in 23 clause (a) to (h) of Rule-41, the dealer cannot ply a vehicle in a public place under the trade certificate issued in his favour by the registering authority. Rule-42 states that no holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent, as the case may be, and every dealer shall maintain a register of trade certificate under prescribed Form-19 under Rule-43 of the Rules, 1989. In the said Form-19, the dealer has to maintain register giving details of particulars of the vehicles and purpose for sale out or brought which should be in consonance with the conditions stipulated in sub-clause (a) to (h) of Rule-41 of Rules, 1989. The said trade certificate can be suspended or cancelled after giving opportunity of hearing under Rule-44, against which order appeal lies under Rule-45. Rule-46 and procedure has been envisaged under rule-46. Under chapter-III of sub-heading "Registration", Rule-47 states about the application for registration of motor vehicles in which an application for registration of a motor vehicle shall be made in Form-20 to the registering authority within a period of seven days from the date of taking delivery of such vehicle, excluding the period of journey, and shall be accompanied by sale 24 certificate in Form-21 along with other documents, as enumerated under sub-clause (a) to (k) of Rule-47 of Rules, 1989.
14. The sale certificate issued on prescribed Form-21 clearly states that the same should be issued by the dealer along with the application for registration of the motor vehicle with an endorsement that the vehicle has been delivered by the dealer to the buyer on the date specified therein. The dealer is obliged under Rule-36 of the Orissa Motor Vehicle Rules, 1993 to furnish to the registering authority, having jurisdiction in the locality, the information in Form-XIII and form-XIV in respect of the vehicles received in stock and sold by him during every month by fifteenth of the succeeding month. Further the dealer shall furnish a copy of the sale certificate in Form-21 prescribed under Rule-47 of the Central Motor Vehicles, Rules, 1989 to the registering authority of the concerned region where the vehicle intended to be registered. In Form-XIII, which was issued under Rule-36(1), the trade certificate holder has to furnish the information in respect of vehicle received in stock in category- wise, whereas he has to furnish all information in respect of vehicles sold in Form-XIV as per Rule 36(1) and also to give a 25 certificate to the extent "this is to certify that the maximum number of vehicles covered under the trade certificate has never been exceeded at any point of time". After the vehicle is sold, the same has to be produced before the registering authority for registration.
15. The registration has to be made as per the provisions contained in Orissa Motor Vehicle Taxation Act, 1975. Section 3 deals with levy of tax and Section 3A deals with levy of additional tax. Section 4A thereof states about the levy and payment of one time tax and Section 4B deals with levy of payment of one time tax on good carriage. Section-5 thereof, which is relevant for the purpose of the case, envisages that notwithstanding the provisions contained in Sections 3, 3A, 4, 4A or 4B, tax at the annual rate specified thereunder shall be paid in advance by a dealer in motor vehicle in respect of vehicles in his possession in the course of his business under the authorization of trade certificate granted under the Rules, 1989. Therefore, Section-5 is a charging section in respect of a trade certificate holder which a dealer is liable to pay the tax in respect of vehicles in his possession in course of his business under the authorization of trade certificate granted under the 26 Rules, 1989. Therefore there is no doubt that a dealer is liable to pay tax in advance in respect of vehicle in his possession in the course of his business under the authorization of trade certificate granted under the Rules, 1989. The quantum of tax has also been fixed to be paid by a dealer under the said provision. If any tax due is not paid as provided under this act, the same shall be recovered by way of penalty under Section 13 of the Orissa Motor Vehicles Taxation Act, 1975 and recovery can be made under Section 14 of the said Act. More so, the procedure for recovery of tax or penalty has been provided under Schedule-II as per the provisions contained in Sub- section (1) of Section 14 of the Orissa Motor Vehicles Taxation Act, 1975.
16. The Tax Recovery Officer may also seek assistance from the Officer-in-Charge of nearest police station for recovery of such tax and penalty in conformity with the provisions of law. The scheme of provisions discussed above clearly indicates that tax at annual rate shall be paid in advance by a dealer in motor vehicle in respect of vehicles in his possession in course of his business and as such under the authorization of trade certificate granted under the Rules, 1989. Admittedly, the dealers are 27 paying the tax as per the trade certificate issued by the registering authority against the maximum number of vehicles possessed at a given point of time and the same has also been paid by way of advance tax.
17. It is no doubt true that the circular dated 29.03.2016 issued by opposite party no.2 to all the RTOs, which is the epicentre of the present controversy, is an inter-departmental correspondence. As to the object behind issuance of such circular, it has been clearly indicated therein that, while reviewing the motor vehicle collection of different RTOs, it was found that tax collected in advance from the dealers for the number of vehicles mentioned in their trade certificate was not in conformity with the total number of registration of vehicles made by the dealers and, as such, the RTOs were directed to collect the tax from the dealers on the basis of total number of vehicles possessed and registered during the entire year by the dealer.
18. The provisions contained in Section 5 of the Orissa Motor Vehicles Taxation Act, 1975 in clear and unambiguous term state that the tax at an annual rate specified therein shall be paid in advance by the dealer in motor vehicle in respect of 28 vehicles in his possession in the course of his business under the authorization of trade certificate granted under the Rules, 1989. The provision is very clear that the dealer is liable to pay the tax in advance in respect of vehicles which he is in possession in course of his business under the authorization of trade certificate. Unless the vehicle is possessed by a dealer, the same cannot be sold. Unless the vehicle is sold, the same cannot be registered. Therefore, possession of a vehicle by a dealer in course of his business and sale thereof and consequential registration of vehicles are intrinsically connected to each other. For the purpose of possession of the vehicle in course of business, tax is being levied under Section 5 of the Orissa Motor Vehicles Taxation Act, 1975, but, when the vehicle is sold, the information is given by the dealer under Form-21 and basing upon which an application is made by the buyer in Form-20 so that the same can be registered by the registering authority.
19. For the purpose of registration, tax is levied under Section 3, 3A, of Orissa Motor Vehicles Taxation Act, 1975. But, payment thereof has to be made on the basis of Section 4A, 4B of the Motor Vehicles Taxation Act, 1975. The owner of the 29 vehicle had to pay the tax levied and unless the same is complied with, no registration can be made to a vehicle purchased by him. So far as dealer is concerned, tax is levied under Section-5 of the Act for the vehicle in his possession in the course of his business under the authorization of the trade certificate.
20. Now, it is to be considered the expression "vehicle in possession in the course of his business" used in Section 5 of the Orissa Motor Vehicles Act, 1975.
21. In Gurucharan Singh v. Kamla Singh, (1976) 2 SCC 152, the apex Court held that "possession", correctly understood, means effective physical control or occupation. The word "possession" is sometimes used inaccurately as synonymous with the right of possess.
22. In Madan Lal v. State of Uttar Pradesh, (2003) 7 SCC 465, the apex Court held that the word "possession" means the legal right to possession. Possession need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to 30 whom physical possession is given holds it subject to that power or control.
23. The apex Court, while considering the meaning "in course of" export of goods out of country within the meaning of Article 286 (1) (b) of Constitution of India in the case of State of Travancore-Cochin v. Bombay Company Ltd., AIR 1952 SC 366, held that the series of transactions which necessarily precede export or import of goods will come within the purview of this clause.
24. In State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333, the apex Court held as follows:
"The expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connected relation. A sale in the course of export out of the country should similarly be understood in the context of clause (1)(b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities."
25. In Commissioner of Gift Tax v. P. Gheevarghese, Travancore Timbers and Products, AIR 1972 SC 23, while considering the provisions contained in Section 5(1) of the Gift Tax Act, the apex Court held as follows:
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"The expression "in the course of carrying on the business etc.," means that the gift should have some relationship with the carrying on of the business. If a donor makes a gift only while he is running the business that may not be sufficient to bring the gift within the first part of cl.
(xiv) of s. 5(1) of the Gift Tax Act."
Meaning of Business:
26. In Words and Phrases-Permanent Edition Vol.5 at page 998, the word "business" is defined as meaning almost anything which is an occupation as distinguished from a pleasure- anything which is an occupation or duty which requires attention as a business.
27. In Bourier's Law Dictionary, "business"
means that which occupies the time, attention and labour of men for the purpose of livelihood or profit, but it is not necessary that it should be the sole occupation or employment. It embraces everything about which a person can be employed. It is a word of much indefinite import, and the legislature could not well have used a larger word.
28. In Chamber's Twentieth Century Dictionary, "business" means (a) employment; (b) trade, profession or occupation; (c) a task or errand incumbent or 32 undertaken; (d) matter requiring attention; (e) dealings, commercial activity, a commercial or industrial concern.
29. The word "business" in Oxford English Dictionary means: (a) A task appointed or undertaken; a person's official duty, part or province; function; occupation,
(b) A person's official or professional duties as a whole; stated occupation, profession or trade, (c) A pursuit or occupation demanding time and attention; a serious employment as distinguished from a pastime, (d) A particular occupation; a trade or profession; commercial transactions or engagement.
30. In Narain Swadeshi Mills v. Commissioner of Excess Profits Tax, AIR 1955 SC 176, the apex Court held that "business connotes some real, substantial and systematic or organized course of activity or conduct with a set purpose" includes amongst others, any trade, commerce or manufacture or any adventure in the nature of trade, commerce of manufacture.
31. In Board of Revenue v. A.M. Ansari, (1976) 3 SCC 512 while considering Section 2 (bbb) of A.P. General 33 Sales Tax Act, 1957, the apex Court held that "business" includes (i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom; and (ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern.
32. In Commissioner of Sales Tax v. Sai Publication Fund, AIR 2002 SC 1582 while considering Section 2(5-A) of Bombay Sales Tax Act, 1959 the apex Court held that "business" includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit accrues from such trade, commerce, manufacture, adventure or concern and any transaction in connection with, or incidental or ancillary 34 to, the commencement or closure of such trade, commerce, manufacture, adventure or concern.
33. In Federal Bank Ltd. v. State of Kerala, (2007) 4 SCC 188 while considering Section 2(vi) of Kerala General Sales Tax Act, 1963 the apex Court held that business includes (a) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce, or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (b) any transaction in connection with, or incidental or ancillary to such trade, commerce, manufacture, adventure or concern.
34. In State of M.P. v. Mukesh, (2006) 13 SCC 195, the apex Court held that the expression business implies continuity.
35. Importing various meaning held by the apex Court, as discussed above, the expression used in Section 5 of the Orissa Motor Vehicle Act, 1975 to the extent vehicle in his 35 possession in course of business has its wide implication. In course of transaction, which necessarily precedes procurement, possession, sale and registration of the vehicle, is a continuity of business. Therefore, once the vehicle is in possession in course of the business of a dealer under the authorization of trade certificate, at the end of twelve months, if it is ascertained that the dealer was in possession of vehicles in excess of the number indicated in the trade certificate for which no advance tax has been collected, in that case, the dealer is liable to pay the tax in consonance with the circular issued by the opposite parties. Needless to say that under a trade certificate, the dealer is obliged to retain the number of vehicles mentioned therein and not beyond that at a given point of time, but that ipso facto cannot disentitle him to pay tax in respect of the vehicles in his possession in course of business. In other words, if the dealer possesses vehicles in course of his business, he is liable to pay the tax in consonance with the circular issued by the authority concerned.
36. The expression "in course of" used in Section-5 of the Act indicates that the dealer is liable to pay the tax in respect of vehicles in his possession in course of his business 36 under the authorization of trade certificate. Therefore, law is well settled that the vehicles in possession in course of his business which implies a period of time during which the movement was in progress, but postulates also an indicated relation under the authorization of trade certificate is liable for taxation under Section 5 of the Act itself.
37. In CCE v. Kisan Sahkari Chinni Mills, AIR 2001 SC 3379, the apex Court held that Article 265 of the Constitution provides: "No tax shall be levied or collected except by authority of law". Article 366(28) of the Constitution which defines Taxation and Tax reads : "Taxation includes the imposition of any tax or impost whether general or local or special, and 'tax' shall be construed accordingly". Any compulsory exaction of money by Government amounts to imposition of tax which is not permissible except by or under the authority of a statutory provision.
38. In Tata Iron & Steel Co. Ltd. v. Collector Central Excise, AIR 2003 SC 144, the apex Court held that statutory backing is essential for imposition of tax. Applying the same to the present context, Section-5 of the Orissa Motor Vehicle Taxation Act, 1975 gives right to the authority for collection of 37 tax and, as such, this provision being a charging section, the same has to be construed strictly.
39. In Tripura Goods Transport Association v. Commr. Of Taxes, AIR 1999 SC 719, the apex Court held that every taxing statute has a charging section and provisions laying down the procedure to assess the tax and penalties and method of their collection and may also contain provisions to prevent pilferage of revenue.
40. In State of Kerala v. Alex George, (2005) 1 SCC 299, the apex Court held that there are three components of a taxing statute, viz., subject of the tax, person liable to pay the tax and the rate at which the tax is levied. If there be any real ambiguity in respect of any of these components which is not removable by reasonable construction, there would be no tax in law till the defect is removed by the legislature.
41. In Cape Brandy Syndicate v. IRC, (1921) 1 KB 64, p. 71, which has been referred in Canadian Eagle Oil C. Ltd. V. R., (1945) 2 All ER 499 and also considered by the apex Court in Gursahai v. CIT, AIR 1963 SC 1062, wherein it was held that in a taxing Act one has to look merely at what is 38 clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.
42. In Sales Tax Commissioner v. Modi Sugar Mills, AIR 1961 SC 1047, the apex Court held that in interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any assumed deficiency.
43. Applying the above principles to the present context and looking at the provisions contained under Section-5 of the Orissa Motor Vehicles Taxation Act, 1975 and giving a strict interpretation to the same, it can be safely construed that tax at the annual rate specified shall be paid in advance by the dealer in motor vehicles in respect of the vehicles in his possession in course of his business under the authorization of trade 39 certificate granted under the Rules, 1989. Admittedly, trade certificate issued on the basis of solemn declaration made by the dealers to keep in possession of number of vehicles at a given point of time and nowhere it has been indicated that without the possession of the vehicle, the same can be sold for the purpose of registration. Therefore, at the end of twelve months, if it is found that the dealer having remained in possession of number of vehicles even not exceeding the number of vehicles in possession at a given point of time as per the trade certificate issued, then he is liable to pay the tax as demanded by the authority concerned because such vehicles were in possession in course of his business.
44. At the end of the year, considering the number of vehicles possessed by a dealer in course of his business which have been sold for registration if the dealer has been called upon to pay the tax under Section 5 of the Act, in that case, the Taxing Authority has not committed any illegality or irregularity because on the basis of the declaration made in the trade certificate to possess the number of vehicles as declared by the dealer, advance tax has been received and ultimately on the basis of the possession in course of business, the same shall 40 also be taxed. The number of vehicles at a given point of time on the basis of trade certificate for which tax has already been collected in advance, for balance vehicles which were in possession in course of business, the dealer is liable to pay the tax in consonance with the provisions contained under Section 5 of the Act itself. On the basis of the circular dated 29.03.2016, the members of the petitioner trust are liable to pay trade certificate tax prospectively not retrospectively.
45. As regards the reliance placed on Ram and Shyam Company v. State of Haryana and others, (1985) 3 SCC 267, with regard to availability of alternative remedy, there is no bar to entertain the writ petition, as that has been considered altogether in a different context. But in the case in hand, as the levy of tax done in consonance with the provisions of the Act itself, then construing strictly as the mechanism has been prescribed under the Act itself, the same has to be followed scrupulously. Though reliance has been placed on the judgment of the apex Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, there is no iota of doubt with regard to the principles laid down in the said case, but, in the instant case, the RTO, who is the competent 41 authority has exercised his power demanding the tax in consonance with the provisions under Section 5 of the Act.
46. Rule-177 of the Orissa Motor Vehicle Rules, 1993 clearly states that all officers of the Orissa Motor Vehicles Department shall be subordinate to the Commissioner and shall exercise the powers and perform the duties as assigned to them from time to time under the Act and rules and the notification issued thereunder. They shall carry out the instructions and orders issued by the Commissioner from time to time. In exercise of such power, since the order in Annexure-2 dated 29.03.2016 has been issued by the Commissioner to subordinate officers, namely, RTOs, it is well within his competence and no fault can be found with him for issuance of such instruction to his subordinate officers and on the basis of the instruction issued in consonance with the provisions contained in Rule-177, if the subordinate officers carries out the same to give effect the provisions contained under Section 5 of the Orissa Motor Vehicles Taxation Act, 1975, this Court is of the considered view that the action of the authorities is well within their jurisdiction and the same does not warrant any interference.
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47. In view of the foregoing discussions, the writ petition merits no consideration and the same is thus dismissed. No order to cost.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 18th May, 2017/Ashok/Alok/GDS True copy Sr. Secretary 43