Karnataka High Court
Sri Prathapa Reddy P vs The State Of Karnataka on 25 April, 2016
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 25th DAY OF APRIL 2016
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.28316/2015(T-MVT)
BETWEEN:
SRI. PRATHAPA REDDY .P
S/O P. NARAYANA REDDY
AGED ABOUT 51 YEARS
R/AT. FLAT No.204, SRI DATTA TOWERS
ARAVINDANAGAR, ANATHAPUR
ANDHRA PRADESH.
...PETITIONER
(BY SRI. V. SUBASH REDDY, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY
DEPARTMENT OF TRANSPORT
BANGALORE - 560 001.
2. THE REGIONAL TRANSPORT OFFICER
CHITRADURGA - 577 501.
3. THE INSPECTOR OF MOTOR VEHICLE
R.T.O., CHITRADURGA - 577 501.
...RESPONDENTS
(BY SRI. T.K. VEDAMURTHY, AGA)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
QUO WARRANTO QUASH THE CHECK REPORT BEARING
No.C.R.No.959617, DTD:25.02.2014, CHITRADURGA,
(ANNEXURE-E) AND SET ASIDE THE ORDER DTD:02.06.2014,
PASSED BY THE R-2 IN PURSUANCE OF THEN CHECK REPORT
ANNEXURE-A.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
In the present case, the petitioner has assailed the validity of the impugned order Annexure-A passed on 02.06.2014 raising a demand of Rs.3,57,520/- under the provisions of Karnataka Motor Vehicles Taxation Act, 1957 (for short 'the Act').
2. The brief facts leading to filing of the present writ petition are that the Road Roller (IR Compactor) which is the subject matter of the present controversy was being carried in a Truck bearing registration No.KA- 01 AC-8847 and was checked by the Inspector of Motor Vehicles and respondent No.2-the Regional Transport Officer, Chitradurgra, passed the impugned order raising the aforesaid demand on the ground that the said Road Roller was a "motor vehicle" liable to pay motor vehicle tax under the Act of 1957 as the same was found at the time of checking on 25.02.2014 within the State of Karnataka and a presumption was raised by the 2nd respondent that the said motor vehicle was used by the petitioner-assessee within the State of Karnataka for the past period also.
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3. The case of the assessee before the said Authority was set up in its reply filed to the tax notice vide Annexure-H dated 25.03.2014 and Annexure-J dated 09.05.2014 was that the said Vibratory Compactor Equipment (Road Roller) manufactured by Ingersoll-Rand (India) Limited, was not used within the State of Karnataka but was carried in the said Truck bearing registration No.KA-01 AC-8847 only for the repair purpose within the State of Karnataka and since the same was not used within the State of Karnataka, the tax in question could not be imposed by the 2nd respondent on the assessee.
4. Learned counsel for the petitioner, therefore, submitted that the impugned order deserves to be quashed by this Court exercising its writ jurisdiction under Article 226 of the Constitution of India.
5. On the other hand, Sri.T.K.Vedamurthy, learned Addl. Govt.Advocate for the State submitted that the assessee was not only given full opportunity to prove its case before the said Authority that the motor 4 vehicle in question was not used within the State of Andhra Pradesh and the mere fact that the said motor vehicle was not even registered either within the State of Karnataka or within the State of Andhra Pradesh as claimed by the assessee, a presumption could definitely be raised against the assessee by the Assessing Authority that it was plied on the roads within the State of Karnataka. He submits that these questions of facts cannot be determined by this Court under Article 226 of the Constitution of India and also an effective alternative remedy by way of an appeal is available to the assessee under Section 15 of the said Act of 1957.
6. The submission of availability of the remedy by way of an appeal to the assessee is not even disputed by learned counsel for the petitioner.
7. Having heard the learned counsel for parties, this Court is of the opinion that in view of the fact that the impugned order Annexure-A dated 02.06.2014 is an appealable order and a regular appeal lies to the Joint Commissioner of Tax (Appeals) under Section 15 of the 5 Act, the present writ petition cannot be entertained by this Court. The case certainly involves certain questions of facts to be determined by the Authorities under the Act.
8. The fact as to, whether the said motor vehicle (Road Roller) was registered at all or not, whether any tax on the same was ever paid by the assessee or not, whether the tax under the provisions of the Act was leviable on the said Road Roller or not depending upon the fact of it being found in the Truck bearing registration No.KA-01 AC-8847 within the State of Karnataka, are all the questions to be determined.
9. Prima facie, it appears that the assessee could not lead proper evidence before the Assessing Authority to support his aforesaid contentions raised before this Court to make good the submission that no tax was liable on the same under the charging provisions of the Act.
10. The assessee can do so even now before the Joint Commissioner of Tax (Appeals) under Section 15 6 of the Act. Since the limitation for filing the appeal against the impugned assessment order Annexure-A dated 02.06.2014 might have lapsed, as the period of only 30 days is allowed under Section 15 of the Act, it is directed that if the assessee files such appeal against the impugned assessment order Annexure-A dated 02.06.2014 within a period of 30 days from today, the same may be entertained and decided on merits by the Joint Commissioner of Tax (Appeals), without raising the objection as to the limitation for filing such appeal.
11. It is needless to say that if such appeal is filed within the aforesaid period of 30 days from today, the assessee will be given reasonable opportunity of hearing and to lead appropriate evidence before the said Appellate Authority. It is expected from the said Appellate Authority to decide the said appeal within a period of six months from filing of the same.
12. Section 15 and Rule 31 of the Karnataka Motor Vehicles Taxation Act and Rules, 1957 are quoted below for ready reference.
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"15. Appeals - (1) Any person who is aggrieved by any order of a Taxation Authority made under this Act, may within the prescribed time and in the prescribed manner, appeal to the prescribed authority.
(2)(a) No appeal shall be entertained by the Appellate Authority unless it is accompanied by satisfactory proof of the payment of the tax not disputed in the appeal.
(b) Notwithstanding that an appeal has been preferred under sub-section (1), the tax or other amount shall be paid in accordance with the order against which the appeal has been preferred (and such appeal shall be accompanied with a proof of payment of such amount) Provided that the Appellate Authority may, in its discretion, give directions as it thinks fit in regard to the payment of the tax or other amount payable under clause
(b), if the applicant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.
(3) Any appeal preferred after the prescribed period shall be dismissed.
Rule- 31-Appeals - Any person aggrieved by an order made by any officer under the Act or these rules may, within thirty days of the date of receipt of the order by such person, appeal to -
(i) the (Deputy Commissioner for Transport), if the original order is that of an officer other than the Commissioner 8 and the (Deputy Commissioner for Transport) and) (Provided that if the original order has been passed by the (Deputy Commissioner for Transport) himself in some other capacity appeal against such original order shall lie to the Commissioner.)
(ii) the Karnataka Revenue Appellate Tribunal, if the original order is that of the (the Commissioner or the (Deputy Commissioner for Transport)".
13. In view of this, the assessee will comply with the aforesaid requirements for maintaining the said appeal as per the aforesaid provisions of law.
14. Writ petition is disposed of accordingly. No costs. Copy of this order be sent to the concerned parties forthwith.
Sd/-
JUDGE Srl.