The petitioner claims refund of tax, which he has paid for the quarter, commencing on July 2009 more specifically; 1/3rd of the amount paid as tax for the said quarter. The admitted facts are that, the petitioner was operating two stage carriages on separate inter-State permits, between Karnataka and Kerala. The petitioner was paying the taxes regularly; which has to be paid before commencement of a quarter. The petitioner's vehicles, both of them, were garaged from 01.07.2009 at Mangalore. The petitioner also intimated the same to the Transport Department of the Government of Karnataka. The Transport Department, Government of Karnataka has issued Exts.P1 and P2, which indicates that the vehicle bearing Reg. No. KA-19AC- 7227was garaged between 01.07.2009 and 07.08.2009 and the other vehicle KA-19/C-1983 between 01.07.2009 and 01.08.2009. Both the vehicles hence, were not operated or used on the roads, for a period of one month ie., July 2009. The petitioner seeks refund of the tax for the said period, on the strength of Exts.P1 and P2 endorsements made by the Transport Department, Government of Karnataka. 2. The application filed by the petitioner was forwarded to the Transport Commissioner, North Zone, Kozhikode, which was rejected as per Ext.P3. Ext.P3 treated the application as one under Section 5 r/w Rule 10 of Kerala Motor Vehicles Taxation Act, 1976, (for brevity 'the Act') and found the petitioner having not complied with the mandatory requirement of prior intimation by 'G-Form' as stipulated in the Rules. Ext.P3 was confirmed in revision by Ext.P5.
3. The learned counsel appearing for the petitioner draws a distinction between Section 5 of the Act, which talks about exemption from tax and Section 6 of the Act, which speaks of refund of tax. According to the learned Counsel, the petitioner had filed the application, under Section 6 of the Act, which has to be considered as per the notification issued by the Government. The notification issued is S.R.O No. 874 of 75. A reading of Section 6 of the Act, along with the notification, would indicate that, on satisfactory production of evidence, all non-user of the vehicles on the roads within the State; entitles refund of tax, which has been remitted. The provision for intimation within a week of the commencement of the non-use, was held to be unworkable in Damodaran v. RTO Malappuram in [2000(2) KLT 578]. This Court found the said provision to be unworkable, as the provision enables a refund application, only on non-user on the roads, for a minimum period of one month and an application could be filed only after such non-user. It was held that the provision for making an application, within one week from the date of commencement of non-use, is impossible of compliance.
4. The learned Government Pleader however, would contend that by making an application for refund, the petitioner is in fact seeking an exemption from tax for which, he should have filed prior intimation. Considering that the exemption and the refund are treated differently under the Statute, the said contetnion has to be negated. Refund and exemption are treated distinctly by the Statute. It is clear that both the lower authorities have, essentially considered the matter, under Section 5 of the Act and declined the refund on the ground of no prior intimation.
5. It is to be noticed that, as held by this Court, in the aforecited decision, a prior intimation would be impossible of compliance, since it cannot, in all instances, be contemplated that the vehicle would be garaged and that too for a specific period. Any incident including an accident, cannot be anticipated and taken account of with prior intimation. Having paid the tax, on the expectation that the vehicle would be used and then confronted with a situation wherein, the vehicle had to be garaged, an operator, could normally claim refund only if the vehicle has been garaged for more than one month; as is stipulated in Section 6 of the Act. In the present case, the vehicle registered in Karnataka was garaged with prior information to the Motor Vehicles Department in the said State and the non-use of the vehicle is evident from the endorsement made as per Exts.P1 and P2, with respect to both the vehicles. It is also significant that while exemption speaks of prior-intimation; refund does not postulate that. The payment of tax, hence reveals the bonafides of a person and the tax so levied and collected for use on the roads within the State, was visualized as eligible for refund on non-use of the vehicle in the roads, within the State, for a minimum stipulated period. This Court, hence, is convinced of the maintainability of the claim of refund made by the petitioner.
6. It is only proper that the petitioner is refunded the 1/3rd amount, out of the tax remitted for the period commencing on July 2009, if non-user could be established Exts.P3 and P5 orders are, hence set aside. The matter is remanded back to the authority and the enquiry can only be on the genuineness of Exts.P1 and P2, which enquiry shall be conducted by the authorities within a period of two months from the date of receipt of a certified copy of this judgment and if found to be genuine; the authority under the taxation statute shall pass orders within two months thereafter, granting the refund.
Writ Petition allowed. No costs.
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K. VINOD CHANDRAN, JUDGE SB // True Copy // P.A To Judge.