Kerala High Court
Sri. Mathew Varghese vs The Intelligence Inspector on 15 December, 2014
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY,THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936
WP(C).No. 33124 of 2014 (M)
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PETITIONER :
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SRI. MATHEW VARGHESE
KALLINGAL HOUSE, EAST KALOOR P.O., THODUPUZHA
IDUKKI DISTRICT - 685 584
BY ADV. SRI.K.J.ABRAHAM
RESPONDENT(S) :
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1. THE INTELLIGENCE INSPECTOR
SQUAD NO.IV, DEPARTMENT OF COMMERCIAL TAXES
KASARAGODE - 671 121.
2. M/S. SREI EQUIPMENT FINANCE LIMITED,
32/2475, PRATHESHA, 1ST FLOOR
PALARIVATTOM, ERNAKULAM- 682 025.
R1 BY SR. GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16-12-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
...2/-
WP(C).No. 33124 of 2014 (M)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXT.P1:- TRUE COPY OF THE RECEIPT NO. SEFL/03/351147/2014-15 DATED
15-12-2014.
EXT.P2:- TRUE COPY OF THE TAX SUFFERED INVOICE NO.IH/508/11-12 DATED
17-10-2011 ISSUED TO MR. PRADEEP KUMAR.
EXT. P3:- TRUE COPY OF THE REGISTRATION DETAILS OF THE JCB,VIDE
REGISTRATION NO. KL-14-L-934.
EXT.P4:- TRUE COPY OF THE NOTICE U/S.47(2) NO. OR 394/14-15 DATED
06-12-2014.
EXT. P5:- TRUE COPY OF THE DETAILS DOWN LOADED FROM THE KVATIS.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
Mn
P.R. RAMACHANDRA MENON J.
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W.P.(C) No. 33124 of 2014
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Dated, this the 16th day of December, 2014
JUDGMENT
The petitioner purchased a used JCB, which was registered with the authorities of the Motor Vehicles Department - Kasargode, bearing No. KL 14 L 934 from the second respondent satisfying sale consideration of Rs. 8,75,000/-, as borne by Ext. P1 receipt dated 05.12.2014. The said equipment was originally purchased by one person by name Pradeep Kumar, as borne by Ext. P2 invoice, who satisfied the tax payable under the KVAT Act and the CESS payable thereon. The vehicle was hypothicated in favour of the financier/second respondent. But since there occurred default on the part of the original owner, the second respondent proceeded with further steps and it was accordingly that the possession was taken over leading to sale effected to the petitioner. The above vehicle was intercepted by the first respondent issuing Ext. P4 notice under Section 47(2) of the KVAT Act, doubting evasion of tax of Rs.4.64 lakhs, which made the petitioner to approach this Court by filing the present writ petition.
W.P.(C) No. 33124 of 2014 : 2 :
2. When the matter came up for consideration earlier, serious disputes were raised from the part of the petitioner, stating that the petitioner was not liable to satisfy tax @ 14.5 %. The specific contention of the petitioner is that, in respect of 'used motor vehicle', tax will attracted only @ 0.5% of the value of the vehicle, simultaneously adding that the petitioner is ready to satisfy tax at the above rate, for the value as given in Ext. P1.
3. Today, during the course of arguments, the learned counsel for the petitioner sought to place reliance on two decisions rendered by the Division Bench of this Court at different occasions viz. 1997 KHC 127 [Bose Abraham Vs. State of Kerala] and 2009 (4) KHC [Commissioner or Income Tax, Cochin Vs. Gaylord Constructions, Angamaly]. Placing reliance on the said decisions, the learned counsel for the petitioner points out that type of the vehicle involved herein is nothing, other than a 'motor vehicle' as defined under Section 2(28) of the Motor Vehicles Act.
3. The learned Government Pleader points out that first decision was with reference to the provisions under the Motor Vehicle Act 1988 and also with reference to the relevant Tax on Entry of Motor Vehicles into Local Areas Act 1994 (reportedly W.P.(C) No. 33124 of 2014 : 3 : renamed as Tax on Entry of Goods in to Local Areas Act 1994). Similarly in the other case, it was with reference to Income Tax Act 1961 and Motor Vehicles Act 1988. The learned Government Pleader further points out that definition of the term used herein is under the Kerala Motor Vehicles Taxation Act.
4. After hearing both the sides, this Court finds that the matter could be caused to be adjudicated by the competent authority, who is to pass appropriate order, taking the proceedings to a logical conclusion under Section 47 (6) of the Act. But, for that reason, the vehicle need not be detained any further and the same shall be released to the petitioner, on satisfaction of tax at the rate 0.5 % of the estimated value of Rs.16,00,000/- (Rupess Sixteen lakhs only) on a provisional basis. It is made clear that this will not bar the way of the competent authority to have the adjudication proceedings finalized, in accordance with law. This shall be done, after giving an opportunity of hearing to the petitioner, second respondent and the registered owner, whose name has been mentioned in Ext. P3; at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment. It is for the petitioner to clear the balance liability, if W.P.(C) No. 33124 of 2014 : 4 : any, subject to the adjudication proceedings as above.
Petitioner shall produce a copy of this judgment along with copy of the writ petition before the concerned respondent for further steps.
The Writ Petition is disposed of.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd