The absence of a certificate of fitness and/or a certificate of registration does not necessarily mean the vehicle is incapable of being used on the road, and tax has to be paid on every motor vehicle used or kept for use within the State.

Judgment

S. N. VARIAVA, J.

( 1 ) THIS appeal is against the judgment of the High Court of Orissa dated 8th January, 2002.

( 2 ) BRIEFLY stated the facts are as follows.

2. 1 The respondent is the owner of a truck bearing No. WMK-7067. In respect of this truck, the registration and fitness certificate had been issued and motor vehicle tax was being paid regularly. The said vehicle met with an accident on 23rd January 1991. The respondent gave off-road intimation as required for the period January 1991 to december 1991. He did not, however, submit any off-road intimation for the period from January 1992 to December 1995. As the accident was severe, the fitness certificate was cancelled by the appellant on 24th january 1991.

2. 2 The Taxing Officer-cum-Regional transport Officer of the appellant by his letter dated 10th January 1996 called upon the respondent to pay a sum of Rs. 27,750/ - being the tax for the period from January 1992 to December 1995. The respondent preferred an appeal, against this demand, before the Chairman, Regional Transport authority. By an Order dated 23rd August 1996, the appellate authority dismissed the appeal. Revision filed by the respondent, before the Transport Commissioner, also stood dismissed.

2. 3 The Taxing Officer also raised further demands for subsequent periods. The respondent thus filed a writ petition in the High court. The writ petition has been allowed by the impugned judgment. It has been held that the tax on motor vehicle can only be levied on vehicles which are suitable for use on roads, kept in the State of Orissa. It is held that under the Orissa Motor Vehicles Act unless a vehicle had both a certificate of fitness as well as a valid certificate of registration, the vehicle cannot be presumed to have been kept for use. It is held that the demand was thus unsustainable in law and the notices of demand were quashed.

( 3 ) WE have heard the parties.

( 4 ) THE relevant provisions of the Orissa motor Vehicles Taxation Act, 1975 read as follows:-

"3. Levy of tax (1) Subject to the other provisions of this Act, there shall be levied on every motor vehicle used or kept for use within the State a tax at the rate specified in schedule-l; (2) The State government may by notification, from time to time, increase the rate of tax specified in Schedule-l: provided that such increase shall not exceed fifty per cent of the rate specified in Schedule-l. (3) All references made in this Act to [schedule-l] shall be construed as references to schedule-l as for the time being amended in exercise of the powers conferred by this section. Explanation - An owner who keeps a transport vehicle for which the certificate of fitness and the certificate of registration are valid, or an owner who keeps any other motor vehicle, of which the certificate of registration is valid, shall, for the purpose of this Act, be presumed to keep such vehicle for use : provided that if the Taxing Officer finds a motor vehicle having been used on any day during the period for which the registration certificate of a vehicle has been suspended or cancelled under the relevant provisions of the motor Vehicles Act such vehicle shall be deemed to have been kept for use for the whole period without payment of tax. 10. Prior intimation of temporary discontinuance of use of a vehicle (1) Whenever any motor vehicle is intended not to be used for any period, the registered owner or person having possession or control thereof shall on or before the date of expiry of the term for which tax has been paid, deliver to the Taxing Officer, an undertaking duly signed and verified in the prescribed form and manner specifying the period aforesaid and the place where the motor vehicle is to be kept alongwith such other particulars as may be prescribed and the registration certificate, fitness certificate, permit and tax token, then current and shall from time to time by delivering, further undertakings give prior intimation to the concerned Taxing Offi