Remanded

Bushara v. the Joint Regional Transport Officer

Kerala HC15 Jul 2016WP(C)/36340/2015

Case brief

AI extract

What is this about?

Petitioner challenged rejection of her tax refund claim. Court found the Deputy Transport Commissioner failed to consider the impact of a previous Full Bench judgment. Writ petition dismissed with direction to authorities to reconsider the application afresh.

What did the court decide?

Direction to Deputy Transport Commissioner to reconsider the claim for refund in light of the judgment in Jomon M.Arackal and pass an order within three months.

Bushara Vs the Joint Regional Transport Officer — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938

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WP(C).No. 36340 of 2015 (N)

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PETITIONER :

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BUSHARA

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WIFE OF IBRAHIM NASAR, AGED 50 YEARS RESIDING AT VAZHAPPILLI HOUSE, KUMARANELLUR P.O., WADAKKANCHERRY G.P., THRISSUR DISTRICT.

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BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN H.

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RESPONDENTS :

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1. THE JOINT REGIONAL TRANSPORT OFFICER WADAKKANCHERRY, THRISSUR DISTRICT - 680582.

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2. DEPUTY TRANSPORT COMMISSIONER (CENTRAL ZONE) AYYANTHOLA, THRISSUR DISTRICT - 680 003.

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R1 & R2 BY GOVT. PLEADER SRI. BOBBY JOHN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 36340 of 2015 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT. P1: TRUE COPY OF THE ORDER DTD. 13/11/2014 ISSUED BY THE IST RESPONDENT.

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EXT. P2:TRUE COPY OF THE FITNESS CERTIFICATE ISSUED BY THE ASST.MOTOR VEHICLE INSPECTOR, WADDAKKANCHERRY ON 9/5/2013

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EXT. P3:TRUE COPY OF THE JUDGMENT MADE IN WPC NO. 7039/2015 DTD. 8/3/2015.

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EXT. P4:TRUE COPY OF THE ORDER DTD 3/9/2015 PASSED BY THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

A.M.SHAFFIQUE, J.

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W.P.(C) No.36340 of 2015

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Dated this the 15^th day of July, 2016

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J U D G M E N T

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The petitioner has approached this Court challenging Ext.P4 by which the request for refund of tax for the period from 01.06.2014 to 31.05.2015 has been rejected by the Deputy Transport Commissioner.

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It is not in dispute that a further revision lies against any order passed by the Deputy Transport Commissioner under Section 24 of the Kerala Motor Vehicles Taxation Act, 1976 ('the Act' for short) which reads as under :

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“24. Powers of revision of Transport Commissioner. -

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(1) The Transport Commissioner may-

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(a) suo motu call for and examine the record of any order passed by any authority or officer under this Act; or

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(b) on application, call for and examine the record of any order passed in appeal under Section 23, to satisfy himself as to the regularity of the proceedings or the correctness, legality or propriety of the order, and, if in any case it appears to the Transport Commissioner that the order shall be modified, annulled or remitted for reconsideration, he may pass such order thereon as he may deem fit.

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(2) An application under clause (b) of sub-section (1) shall be filed in such manner as may be prescribed within three months from the date on which the order to which the application relates was communicated to the applicant, and shall be accompanied by such fee as may be prescribed.

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W.P.(C) No.36340 of 2015

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(3) The Transport Commissioner shall not suo motu initiate proceedings to revise any order after the expiry of two years from the date on which such order has been passed.

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(4) No order prejudicial to any person shall be passed under sub-section (1), unless such person has been given an opportunity of making his representation.”

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The petitioner submits that the issue is covered by a Full

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Bench decision of this Court in Jomon M.Arackal v. Tahsildar, Muvattupuzha Taluk and others [2015 (1) KLT 163] . The applicability of the said case to the present facts and situation is a matter to be considered by the competent authorities. It is contended that the tax was demanded for the period, when the vehicle was in custody of the police for non payment of Motor Vehicle Tax. This Court of course in the judgment aforesaid had observed that a claim for refund of tax paid for the period during which the vehicle was detained under Section 11 would lie notwithstanding the fact that the detention is for non-payment of tax.

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Having regard to the aforesaid factual situation, it is for the appropriate authorities to consider the matter and pass an order in the light of the law laid down by this Court.

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In the statement filed by the 1^st respondent it is stated that the registered owner has not paid vehicle tax for the quarter ending 30.06.2014 within the grace period and therefore, the vehicle was

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W.P.(C) No.36340 of 2015

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seized and kept under police custody for non payment of tax. It is further observed that as per S.R.O.No.461/2004 for applying refund, tax has to be paid within grace period in advance and it has to be shown that the vehicle was not put to use during the relevant period. If the vehicle was not used for the relevant period, the registered owner has to submit G Form as stipulated in Section 5 of the Act. It is stated that the registered owner did not pay the tax and did not submit refund.

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Having regard to the aforesaid submission, it is clear from the impugned order that the officer had not considered the impact of the judgment in Jomon M.Arackal (supra), whereas, he had only referred to the Government order S.R.O.No.461/2004. In fact, the officer is expected to issue orders in the light of the law laid down by this Court and applied the facts and circumstances based on such pronouncement of law. It is held by this Court as under :

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“ We, therefore, answer the reference in the following manner;

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(i) In cases where the vehicle is held in the custody of the police or other authorities for non-payment of tax due under the Act, a claim for exemption from payment of tax for the period during which the vehicle is in such custody can be made only in terms of S.5 of the Act, read with R.10 of the Rules. In such cases, the claim for exemption will have to be preferred through the filing of an application in Form G as mandated under R.10 of the Rules;

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W.P.(C) No.36340 of 2015

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(ii) In cases where the vehicle is held in the custody of the police or other authorities for offences other than nonpayment of tax due under the Act, a claim for exemption from payment of tax for the period during which the vehicle is in such custody can be made in terms of S.22 of the Act, read with Clause 27 of S.R.O. No.878/1975. In such cases, there will be no need to file an application in Form G, as mandated under R.10 of the Rules;

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(iii) In either event, it will be open to an assessee under the Act to pay the tax demanded and seek a refund of the same, in terms of S.6 of the Act read with R.15 of the Rules, by establishing that the vehicle in question was not used in the State on account of it being in the custody of the police or other authorities.”

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Having regard to the aforesaid law laid down by this Court, it is for the assessing authority to consider the same and pass appropriate orders.

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Having regard to the aforesaid factual situation, I am of the view that this is a fit case in which the petitioner should be permitted to raise all the grounds. Since the impact of the judgment in Jomon M.Arackal (supra) has not been considered by the assessing authority, it is appropriate to remit the matter back to the competent authority to consider the application afresh.

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Accordingly, this writ petition is disposed of as under :

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Ext.P4 is set aside. The Deputy Transport Commissioner is directed to reconsider the claim for refund in the light of the

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W.P.(C) No.36340 of 2015

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judgment in Jomon M.Arackal (supra) and pass an order within a period of three months from the date of receipt of a copy of this judgment.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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Bushara v. the Joint Regional Transport Officer

Case brief

What is this about?

What did the court decide?

Bushara v. the Joint Regional Transport Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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