Kerala High Court
Dr. Mercy George vs The Joint Regional Transport Officer on 13 August, 2013
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935
WP(C).No. 23883 of 2013 (I)
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PETITIONER :
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DR. MERCY GEORGE
W/O.ADVOCATE GEORGE JOSEPH
AGED 58 YEARS, RESIDING AT: MANIMALATHARAPPIL HOUSE
SULTHAN BATHERY, WAYANAD-673592.
BY ADVS.SRI.K.JAJU BABU
SMT.M.U.VIJAYALAKSHMI
RESPONDENT :
-----------------------
THE JOINT REGIONAL TRANSPORT OFFICER
SULTHAN BATHERY, WAYANAD-673592.
BY SPL. GOVT. PLEADER SRI. SEBASTIAN CHAMPAPPILLY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2013,
ALONG WITH WA NO. 1646/2013 & CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 23883 of 2013 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXT. P1: COPY OF THE INVOICE NO.CLT-V-0164 DATED 13.08.2013 ISSUED BY
THE GERMAN MOTORS TO THE PETITIONER.
EXT. P2: COPY OF THE SALE CERTIFICATE DATED 13.08.2013 SHOWING THE
DELIVERY OF VEHICLE TO THE PETITIONER.
EXT. P3: COPY OF THE VEHICLE DATA SHEET DATED 13.08.2013 ISSUED BY
THE GENERAL MOTORS.
EXT. P4: COPY OF THE TEMPORARY CERTIFICATE OF REGISTRATION DATED
13.08.2013 ISSUED BY THE RTO, KOZHIKODE TO THE PETITIONER.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.S. TO JUDGE
Mn
"C.R."
V.CHITAMBARESH, J.
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W.P (C) Nos.23883, 24064 & 24065 of 2013
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Dated this the 3rd day of October, 2013 REFERENCE ORDER Does the 'purchase value' of a vehicle take in the tax payable under the Kerala Value Added Tax Act, 2003 in order to decipher the one-time tax payable under the Kerala Motor Vehicles Taxation Act, 1976 ('the Act' for short) ?
2. The term 'purchase value' has been defined under Section 2(e) of the Act as follows:-
" 'Purchase Value' means the value of the vehicle as shown in the original purchase invoice.
Provided that where the purchase value of any vehicle including a vehicle imported from other countries or a vehicle acquired or obtained otherwise than by way of purchase, is not ascertainable on account of non- availability of the invoice, then the purchase value shall be the value or price at which the vehicles of like kind or of same specifications is already registered or available with the manufacturer or as fixed by the Customs and Central Excise Department for the purpose of levying customs duty, as the case may be."
The vehicles in question are not imported from abroad and the retail invoices (Ext.P1) are available which very much includes the tax paid under the Kerala Value Added Tax Act, 2003 in the sale consideration. In fact none of the provisions of the 'Act' W.P(C) Nos.23883, 24064 & 24065 of 2013 2 indicate the avoidance of the tax paid under the Kerala Value Added Tax Act, 2003 in the determination of the 'purchase value' of a vehicle.
3. The transactions in question are governed by the Sale of Goods Act, 1930 and the sale becomes complete by payment of consideration coupled with delivery of possession of the vehicle. Section 2(10) of the Sale of Goods Act, 1930 defines 'price' to mean the money consideration for a sale of goods. The money consideration obviously includes the price, excise duty, cess or any other tax imposed under the Acts applicable to the area. It has been held in State of Kerala and others v. Maharashtra Distilleries Ltd. and others [(2005) 141 STC 358 (SC)] that Excise Duty paid form part of the sale consideration. The Supreme Court in State of Tamil Nadu v. Kothari Sugars & Chemicals Ltd. [(1996) 101 STC 197] held as follows:-
"Thus the total amount of consideration for the purchase of goods would include the price strictly so called and W.P(C) Nos.23883, 24064 & 24065 of 2013 3 also other amounts which are payable by the purchaser or which represent the expenses required for completing the sale as, the seller would ordinarily include all of them in the price at which he would sell the goods."
4. Mr.Justice R.V.Raveendran speaking for the Bench in BPL Limited v. State of Karnataka and another [(2008) 11 VST 835 (Kar)] observed as follows:-
"It is clear therefrom that the amount paid by a dealer to purchase the goods constitutes part and parcel of the value of the goods and it is immaterial how the seller has segregated the consideration under the various heads."
The term 'purchase value' is of wider import than 'purchase price' and the very concept of the Kerala Value Added Tax Act, 2003 is that the tax paid adds to the 'value' of the goods. It is incomprehensible as to how the tax under the Kerala Value Added Tax Act, 2003 alone could be excluded when Excise Duty, Cess and other taxes are included in the 'purchase value'.
5. The liability to pay one-time tax under Section 3 of the Act as per the table given in Annexure I to the Schedule thereof is dependant on the 'purchase value' referable to the sale W.P(C) Nos.23883, 24064 & 24065 of 2013 4 consideration. The tax under the Act is in the nature of regulatory and compensatory measure and the power is exercised to impose taxes on motor vehicles which use the roads in the State. The following decisions are apposite:-
i) Bolari Ores Ltd. v. State of Orissa
[(1974) 2 SCC 777]
ii) Jai Prakash and others v. State of U.P. and others [(2004) 13 SCC 390] The tax under the Kerala Value Added Tax Act, 2003 is on the transaction and the tax under the Act is on the vehicle for use on public road.
6. None of the salient aspects referred to above have been considered in Fathima Shirin v. Joint Regional Transport Officer [(2013) 3 KLT 945 (DB)]. The declaration therein that the 'purchase value' of a vehicle does not include the tax suffered under the Kerala Value Added Tax Act, 2003 militates against the decisions of the Supreme Court referred to above. A learned single Judge of this Court in Shanavaz v. The W.P(C) Nos.23883, 24064 & 24065 of 2013 5 Transport Commissioner and others [W.P.(C) No.29785/2012] has earlier held that 'purchase value' has to be determined reckoning the sales tax also. I am therefore unable to subscribe to the view taken by the Division Bench in Fathima Shirin's case and do feel that the decision requires immediate reconsideration.
7. The Special Government Pleader points out that the revenue due to the State would be badly hit if the dictum laid down in Fathima Shirin's case is followed for payment of one- time tax. It is also contended that a practice hitherto followed for decades is abruptly stopped by excluding the value added tax from the 'purchase value' in determining the one-time tax. The issues involved in these writ petitions have a serious impact on the revenue due to the State and I therefore appoint Mr.K.P.Abdul Azeez, Advocate as Amicus Curiae to assist the Court.
I refer these writ petitions to the Division Bench of this Court for an authoritative pronouncement. The Registry shall W.P(C) Nos.23883, 24064 & 24065 of 2013 6 place the papers before the Honourable Chief Justice for constituting a Bench of appropriate strength.
V.CHITAMBARESH, Judge.
nj.