O.P. No. 27396 of 2001. Case: Chakiat Agencies (P) Ltd. Vs State of Kerala and Others. High Court of Kerala (India)
| Case Number | O.P. No. 27396 of 2001 |
| Counsel | For Appellant: Sri M. Pathrose Matthai, Senior Advocate, Sri B.S. Krishnan, Senior Advocate, Sri S. Venkiteswaran, Senior Advocate, Sri K.P. Sreekumar, Sri K. Anand and Smt. Latha Krishnan, Adv. And For Respondents: Dr. Sebastian Champappilly, Special Government Pleader, Sri E.K. Nandakumar, Senior Advocate and Sri A.K. Jayasankar Nambiar, ... |
| Judges | P.R. Ramachandra Menon, J. |
| Issue | Constitution of India - Article 112; Kerala Motor Vehicles Taxation Act, 1976 - Sections 2, 2(46), 2(18), 2(22), 2(28), 2(32), 2(39), 2(46), 2(h), 2(m), 3, 5(i) |
| Citation | ILR 2012 (3) Ker 247 |
| Judgement Date | May 21, 2012 |
| Court | High Court of Kerala (India) |
Judgment:
P.R. Ramachandra Menon, J.
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Whether the dictum in M/s Chakiat Agencies Pvt. Ltd. v. State of Kerala 2001 (2) K.L.T. 840 as to the liability of the petitioners to satisfy tax under the Kerala Motor Vehicles Taxation Act, 1976 has lost its significance by virtue of the amendment made to the Motor Vehicles Act, 1988, as per Act 54 of 1994, particularly defining the terms 'semi-trailer' and 'trailer' under Sections 2(39) and 2(46) respectively (so as to absolve the petitioners from the liability) is the point sought to be projected. The contention raised by the petitioners is that the amendment is 'clarificatory' in nature and hence, though it was introduced as per the Act 54 of 1994, w.e.f. 14-11-1994, it should be applicable right from the beginning and the petitioners are not liable to satisfy any tax in respect of the 'chassis' as depicted in Ext. P-1. Both the petitioners are shipping and transporting agents, undertaking loading and unloading of cargo into and from the Vessels in the 'wharf' area of Cochin Port, which is a Major Port, governed by the provisions of the Major Port Trusts Act, 1963. According to the petitioners, the roads lying within the Port area are not 'public roads' coming under the control of the State Government or the National Highways Department, as the case may be, and as such, a particular type of vehicle within the Port area for transporting the Containors/cargo are not liable to be taxed under the Kerala Motor Vehicles Taxation Act (hereinafter referred to as Act) mainly for the reason that it is not a mechanically propelled motor vehicle, but a particular type of carriage having no wheels in the front and have necessarily to be hooked on to the 'prime mover' for being pulled on. It is also the case of the petitioners that the owner of the 'prime mover' is somebody else, who has paid the tax based on the laden weight of the prime mover, taken together with the maximum weight of the trailers portion, attachable to the prime mover.
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In connection with the Shipping Agency activities, the petitioner's company in O.P. No. 27396 of 2001 owned 105 chassis like those as given in Ext. P-1, which were being used strictly within the encroached premises of the Port Area to facilitate the movement of Cargo from one part of the Port Area to another. The above vehicles were imported in 1979 and pursuant to the steps taken by the Joint RTO, Mattancherry, they were got registered, assigning separate Registration numbers in the year 1986. But, subsequent to the registration, the Joint RTO, Mattancherry raised a demand for tax of the chassis for the period from 2-6-1979 onwards, under the Kerala Motor Vehicles Taxation Act, 1976. Since the Appeal and subsequent Revision preferred before the departmental authorities did not turn to be fruitful, it was challenged by filing O.P. No. 2365 of 1987 before this Court. A Division Bench of this Court set aside the demand notice and orders in appeal and revision, as per the judgment reported in United States Lines Agency v. State of Kerala and others 1988 (1) K.L.T. 259 and directed the concerned authority to decide the primary question, whether the vehicle concerned will come within the definition of 'motor vehicle' under section 2(18) of the Motor Vehicles Act, 1939, before proceeding further.
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Pursuant to the above verdict, the matter was reconsidered by the assessing authority, who held that Section 2(18) of the M.V. Act, 1939 was attracted to the case in hand and imposed the liability to pay tax, which was confirmed in Appeal as well as in Revision. This made the petitioner to approach this Court again, by filing OP. 3504 of 1992, which was heard along with the connected cases involving a similar dispute. As per the decision reported in M/s Chakiat Agencies Pvt. Ltd. v. State of Kerala 2001 (2) K.L.T. 840; a Division Bench of this Court declined interference and the original petitions were dismissed, holding that trailers were also motor vehicles, adapted for use on the roads and hence taxable under Section 3 of the Motor Vehicles Taxation Act, 1976 and that the contention raised by the petitioners that 'Port area' was not a 'public place', was not correct or acceptable.
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Being aggrieved of the verdict passed by the Division Bench, the matter was taken up before the Supreme Court by filing SLP No. 13316 of 2001, which was dismissed at the admission stage itself, as borne by Ext. P-12 order, observing that the case was not a fit one to call for any interference. However, the petitioner was permitted to prefer a representation before the Joint RTO, observing that the payment of tax and registration would be subject to the decision on the representation.
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After dismissal of the case filed before this Court vide the decision reported in 2001 (2) K.L.T. 840 (cited supra), the Joint RTO issued Ext. P-6 demand notice demanding ` 2,15,35,500 for the period from 1-7-1986 to 30-11-1994 as tax arrears and pursuant to Ext. P-7 letter given by the petitioner (in O.P. No. 27396 of 2001), Ext. P-8 details were furnished as to the split up figures for the total demand raised. This was followed by Ext. P-10(a) and (b) notices issued under the Revenue Recovery Act. Meanwhile, based on the observation in Ext. P-12 order passed by the Apex Court dismissing the SLR the petitioner preferred a representation before the Joint RTO, which however was rejected as per Ext. P-15. This was challenged by filing Ext. P-16 Appeal, which was dismissed by the appellate authority as per Ext. P-17. On further challenge by filing Ext. P-18 Revision Petition before the Transport Commissioner, the same was also dismissed as per Ext. P-19. The petitioner is challenging all the impugned proceedings, such as Exts. P-6, P-10(a), P-10(b), P-15, P-17 and P-19 in the Original Petition (as amended).
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The petitioner in O.P. No. 28929 of 2001 is stated as the owner of 80 similar 'Semi Trailers', used in the wharf area of Cochin Port Trust, for transporting Cargo. These vehicles, as shown in Ext. P-1 were in fact imported by the predecessor-in-interest in the year 1976-77 and they were registered before the Joint RTO, Mattancherry in the year 1986. The Joint RTO, demanded arrears of motor vehicles tax for the period from January 1977 to 1986 and on challenging the same, the matter was remanded for fresh consideration by the departmental authorities. After re-considering the issue, the Joint RTO passed an order and demanded tax arrears to the tune of ` 1,58,79,035 for the period from 3-1-1977 to 30-6-1986. Meanwhile, '6' Semi Trailers were taken to Tuticorin and the balance '74' remained in Cochin. On serving the order, demanding the tax arrears, the predecessor-in-interest filed O.P. No. 215 of 1994, wherein interference was declined and the same was dismissed. Pursuant to dismissal of the said O.P, the petitioner satisfied a sum of ` 40 lakhs each on 3-7-2001 and 31-7-2001 and ` 78,79,035 on 16-8-2001 as evident from Exts. P-4 to P-6 respectively. There was no payment in respect of the subsequent period from 1-7-1986.
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From 1-4-1990, the petitioner has been filing 'G' Forms for exemption of tax for 'non-use' under Section 5(i) of the Kerala Motor Vehicles Taxation Act, read with Rule 10 of the Kerala Motor Vehicles Taxation Rules. Since no lax payment was effected by the petitioner in respect of the subsequent period, demand/recovery notices were issued as per Exts. P-7 and P-7(a) for a sum of ` 1,98,42,710 for the period from 1-7-1986 to 30-11-1994 by way of Tax, Addl. Tax for the belated payment and also Surcharge at the prescribed rates, which in turn...
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