IMPORTANT POINT
The fact of non-use has to be declared to the concerned authority to avoid tax liability under the Madhya Pradesh Motoryan Karadhan Adhiniyam.

ORDER

Civil Appeal Nos. 5560, 5561, 5562-70 of 2002 @ SLP (C) No. 4771/1994 and SLP (C) No. 5034/1994 and SLP (C) Nos. 4516-4524/1995 :

Leave is granted.

2. This batch of appeals arises from the common judgment and order of the High Court of Madhya Pradesh (Jabalpur Bench) passed on February 9, 1994 in various writ petitions filed by bus operators holding All-India Tourist permits.

3. The State of Madhya Pradesh passed The Madhya Pradesh Motoryan Karadhan Adhiniyam, 1991 [for short, Act 25 of 1991 ] under Entry 57 of List-II of the Seventh Schedule to the Constitution. The said Act was subsequently amended by Act 26 of 1991. Act 25 of 1991, thus amended, was challenged before the High Court of Madhya Pradesh, inter alia, on the ground of lack of legislative competence. The High Court repelled the contention and dismissed the writ petition (Misc. Petition No. 39 of 1992) on 1st October, 1992. Subsequently, Act 25 of 1991 was again amended by Act 10 of 1993, which was also questioned but it was upheld by the High Court in Jabalpur Bus Operators Association & Ors. vs. Union of India & Ors. (Misc. Petition No. 1646 of 1993), reported in 1993 M.P.L.J. 992. The scope of challenge in this batch of writ petitions is with regard to the absence of a machinery for assessment of tax for the vehicles plying on the basis of All India Tourist Permit in the State of Madhya Pradesh and denying them refund of tax for the period they were not used or kept for use in the State of Madhya Pradesh.

4. Mr. M.L. Lahoty, learned counsel appearing for the appellants in the civil appeal (arising out of S.L.P. (C) No. 4771 of 1994), has contended that though the Act was upheld by the High Court, it was observed that the State should provide procedure for assessment of tax liability, already created, by way of filing return, assessment and payment of tax. What the learned counsel submits is that for the purpose of ascertaining the tax liability and refunding the tax, there is no provision in Act 25 of 1991 and the Madhya Pradesh Motoryan Karadhan Rules, 1991 (for short, "the M.P. Rules") as such the provisions of the Act have to be declared as unconstitutional.

5. We are afraid, we cannot accede to the contention of the learned counsel. On a plain reading of the provisions of Act 25 of 1991, it is evident that Section 3 is the charging section, assessment procedure is laid down in Section 8 of the Act for assessment and as a consequence of assessment where the operator is found entitled to refund, Section 14 provides for refund of the tax. These provisions equally apply to the operators holding All-India Tourist permits. Section 14, insofar as it is relevant for our purpose, reads as follows:

"14. Refund of tax.-- (1) Where

(i) the tax for any motor vehicle has been paid for any month, quarter, half year or year and the motor vehicle has not been used during the whole of that month, quarter, half year or year or a continuous part thereof not being less than one month and written intimation of such non-use has been given in the prescribed form to the Taxation Authority in the manner prescribed prior to the commencement of the period of such non-use; or

(ii) the vehicle has been so altered as to entitle the owner to the refund of a portion of the already paid,

a refund of the tax shall be payable at such rates and subject to such conditions as may be prescribed. "

6. From a perusal of the provisions, extracted above, it is clear that (1) where tax has been paid for any month, quarter, half year or a year and any motor vehicle (which includes a vehicle plying on the basis of All-India Tourist permit) has not been used during the whole of the month, quarter, half year or year or a continuous part thereof, not being less than one month, and written intimation of such non-use has been given in the prescribed form to the Taxation Authority in the manner prescribed prior to the commencement of the period of non-use;