Calcutta High Court
Marshall Corporation Ltd. And Anr. vs The State Of West Bengal And Ors. on 15 January, 2003
Equivalent citations: AIR2004CAL145, AIR 2004 CALCUTTA 145
Author: K.J. Sengupta
Bench: K.J. Sengupta
ORDER K.J. Sengupta, J.
1. In this writ petition the petitioners, being operators of amongst other trucks and trippers have challenged the order of the Taxing Officer, Barrackpore 24-Parganas (North) whereby and whereunder the aforesaid authority had imposed additional road tax under West Bengal Motor Vehicles Tax Act 1979 on the 54 vehicles. The admitted position is that the registration of the vehicles viz., trucks and trippers has been done in this State.
2. Mr. Arabinda Chatterjee submits that if one goes by the definition given in the said Statute, these vehicles are not liable to be charged with additional road tax, unless these vehicles have been registered in West Bengal and do not hold any inter-State permit. According to him, these vehicles are classified under the schedule "C" of the aforesaid Act. The vehicles do not fall within the definition as above. He further submits that the tax can be levied going by the definition given in the Act itself and not at all. In support of his submission he has relied on a decision reported in AIR 1998 SC 120. So, this has to be set aside.
3. Mr. De appearing for the respondents contends that although going by the definition in the Section 3 of the said Act, namely, The West Bengal Additional Tax and One-time Tax on Motor Vehicles Act 1989 these types of vehicle do not come within its purview but in order to ascertain the intention of the legislature the Court has to take help of the Government Notification and or the orders if any lacunae is found in the Statute. In support of his submission he has relied on a decision rendered by a learned single Judge of this Court reported in (1997) 2 Cal LJ 91 and submits that the Government notification should be taken into account while ascertaining the correct meaning of the definition.
4. Having heard the learned Counsels for the parties the question falls for consideration in this case is as to whether (1) trucks and trippers can be charged with the additional road tax under the aforesaid Statute going by the definition given in the Statute itself; (2) whether Court can look into the notification of the Government in order to ascertain the meaning and intention of the legislature as regard definition. In order to ascertain the meaning or the definition of 'vehicles' in the Act, Section 3 being the charging section of the West Bengal Additional Tax and One time tax and Motor Vehicles Act, 1989 can be reproduced hereunder :
"3. Additional Tax.-- (1) Every owner of a registered motor vehicle or every person, who owns or keeps in his possession or control any motor vehicle as described in Schedule I, shall pay the additional tax at the rate specified therein against such vehicle :
Provided that in the case of a motor vehicle registered outside West Bengal whether temporarily (under Section 43 of the Motor Vehicles Act, 1988) or otherwise and which is used or kept for use in West Bengal temporarily, additional tax shall be payable for every week or part thereof for which the motor vehicle is so used or kept for use in West Bengal, at the rate of one-fifty-second part of the additional tax payable for the year."
5. Since heading "C" has been referred to in the said Section, it is appropriate to set out the relevant portion being heading "C" of Schedule I. "C. Motor Vehicles for transport of goods:
(1) (a) Goods carriages plying under inter-State permits, temporary or permanent, issued by the Regional Transport Authority or the State Transport Authority of a State, other than the State of West Bengal, and plying in West Bengal, irrespective of whether they are registered in West Bengal or not :
(i) Goods carriages with gross vehicle weight up to 6000 kilograms Rs. 1000/- per annum or 1/52nd part thereof for every week
(ii) Goods carriages with gross vehicle weight above 6000 kilograms and up to 12000 kilograms Rs. 2000 per annum or 1/52nd part thereof for every week
(iii) Goods carriages with gross vehicle weight above 12000 kilograms and up to 15000 kilograms Rs. 3000/- per annum or 1/52nd part thereof for every week
(iv) Goods carriages with gross vehicle weight above 15000 kilograms and up to 16200 kilograms Rs. 4000 per annum or 1/52nd part thereof for every week
(v) Goods carriages with gross vehicle weight above 16200 kilograms (including articulated trailer) Rs. 4000 plus Rs, 500 for every 2500 kilograms or part thereof per annum (or 1/52nd part thereof for every week) Provided that if the inter-State Permit has been issued by the Regional Transport Authority or the State Transport Authority of a State with which the State of West Bengal has a reciprocal agreement, such payment of the additional tax may be condoned by the State Government.
(b) Goods carriages registered in any State, other than the State of West Bengal, and playing within the State of West Bengal:
(i) Goods carriages with gross vehicle weight up to 60 00 kilograms Rs. 500/- per annum or 1/52nd part thereof for every week
(ii) Goods carriages with gross vehicle weight above 6000 kilograms and up to 12000 kilograms Rs. 1000 per annum or 1/52nd part thereof for every week
(iii) Goods carriages with gross vehicle weight above 12000 kilograms and up to 15000 kilograms Rs. 1500/- per annum or 1/52nd part thereof for every week
(iv) Goods carriages with gross vehicle weight above 15000 kilograms and up to 16200 kilograms Rs. 2000 per annum or 1/52nd part thereof for every week
(v) Goods carriages with gross vehicle weight above 16200 kilograms (Including articulated trailer) Rs. 2000 plus Rs. 500 for every 2500 kilograms or part thereof per annum (or 1/52nd part thereof for every week) Provided that in respect of local trucks, mini trucks tankers or 3-wheelers, registered in West Bengal, and in respect of which permits have been issued by any Regional Transport Authority in West Bengal, no additional tax shall be levied.
Tractors, breakdown 50 percent of the
cans used for towing tax payable under the
vehicles trailers and West Bengal Motor
articulated vehicles Vehicles Tax Act, 1979
(West Ben. Act IX of
1979)
Provided that the tractors or trailers which are solely used for agricultural purpose or are exclusively used within tea gardens, and are in no circum stances used on public roads, may be exempted from payment of additional tax, provided the owner of such tractor or trailer, as the case may be, complies with the provisions of Sub-section (3) of Section 4 and Section 13 of the West Bengal Motor Vehicles Tax Act, 1979."
6. It is admitted position that the vehicle in question falls within the classification of vehicles for transportation of goods. It is clear from the definition that no other vehicles can be charged with the additional tax excepting motor vehicles in Schedule I rather sometimes exemption may be granted even from amongst the aforesaid classified vehicles.
7. It will appear from the schedule itself in order to charge additional taxes on the vehicle carrying goods two conditions are to be satisfied :
1) the vehicles concerned must be registered outside and holding inter-State permit;
2) the vehicles carrying goods not registered within the State of West Bengal cannot be charged with the additional tax.
8. In order to ascertain the meaning or the definition and further intention of the legislature in my view, the Court cannot look into any Government notification and/or order whether clarificatory in nature or otherwise. The intention has to be gathered from the object of the Act as well as plain reading of the Statute itself, particularly Fiscal Statute. The Fiscal Statute concerned with the fixation of liability to pay the levy or fees or tax. Therefore, there cannot be any ambiguity in this regard. If the Statute itself or for that matter the charging section attaches liability with certain class of persons, they are liable to pay or not otherwise, The judgment of the Supreme Court cited by Mr. Chatterjee in Paragraph 5 has made it clear for construction of the taxing Statute. It says as follows :
"The Rule of construction of a charging Section is that before taking any person it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. A charging section has to be construed strictly if a person has not been brought within the ambit of the charging section by clear words, it cannot be taxed at all."
9. As I have already observed that trucks and trippers registered in West Bengal and having inter-State route permit does not come within the purview of the charging section, therefore, I am unable to accept the argument advanced by Mr. De that the Government order or notification as annexed to the affidavit in opposition should be brought in assistance to give an extended meaning of the Statute. In my view, when the legislature consciously has not thought it fit to bring certain class of vehicle within the purview of the Act, the Government bureaucrat cannot bring it simply because he does not have any power.
10. Mr. De has then shown me Section 24, being the Rule making power of the Act. No rule has been framed or has been produced before me. Moreover, going by the Act it appears to me no Rule can be framed in derogation of the Act itself. If the Act does not bring any class of vehicle within its purview, then by framing Rules, it cannot be brought. The judgment delivered by the learned Single Judge is distinguishable on the fact. In that case goods vehicles were registered outside the State of West Bengal and moreover, the aforesaid judgment has been delivered without considering the decision of the Supreme Court as cited by Mr. Chatterjee. So, the judgment cited by Mr. De, is wholly inappropriate in this case.
11. In that view of the matter, I hold that the Taxing Officer has exceeded his jurisdiction by imposing tax and passing the impugned order. As such, the same is set aside.
12. However, there will be no order as to costs.
13. There will be a Writ of Mandamus in terms of prayer (a) to the writ petition.
14. Urgent xerox certified copy of this order, if applied, be supplied as expeditiously as possible.