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2001 Supreme(Bom) 880
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle N.V. Dabholkar, JJ.
Afzalpurkar Vishwanath s/o Venkatesh.... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 2339 of 1989, decided on 25-9-2001.
Advocates appeared :
P.G. Godhamgaonkar, for petitioner.
P.B. Patil, A.G.P., for respondents.
The main legal point established in the judgment is that the limitation of six months for claiming a refund under Rule 12(3) is necessary to prevent false claims of refund and double taxation, and the provisions of Section 9(6) and Rule 12(4) can be interpreted to relax the limitation in certain cases.
Headnote:
Rule 12(3) - Constitutional Validity of Rule 12(3) of the Bombay Motor Vehicles Tax Rules, 1958 - Section 9 of the Bombay Motor Vehicles Act, 1958 - Section 3(1-C) - Section 9(4) - Section 9(6) - Rule 12(4)
Fact of the Case:
The petitioner challenged the constitutional validity of Rule 12(3) of the Bombay Motor Vehicles Tax Rules, 1958, which prescribes a limitation of six months for claiming a refund of life time tax. The petitioner had shifted his residence from Aurangabad to Hyderabad and sought a refund of the tax deposited with the tax authority in Aurangabad after registering his vehicle in Hyderabad.
Finding of the Court:
The court found that the limitation of six months for claiming a refund under Rule 12(3) was reasonable and necessary to prevent false claims of refund and double taxation. The court interpreted the provisions of Section 9(6) and Rule 12(4) to relax the limitation and allow the petitioner's claim for refund as the vehicle was permanently removed from the State of Maharashtra.
Issues: The issues involved the constitutional validity of Rule 12(3) and the interpretation of provisions related to refund of life time tax under the Bombay Motor Vehicles Act, 1958.
Ratio Decidendi: The court held that the limitation of six months for claiming a refund under Rule 12(3) was necessary to prevent false claims of refund and double taxation. The court interpreted the provisions of Section 9(6) and Rule 12(4) to relax the limitation and allow the petitioner's claim for refund as the vehicle was permanently removed from the State of Maharashtra.
Final Decision: The writ petition was partly allowed, and the petitioner was entitled to a refund of the one time tax for the life time of the vehicle, as the vehicle was permanently removed from the State of Maharashtra.
2. Petitioner was resident of Aurangabad and he owned a Luna Moped (two wheeler), which he had purchased on 8-7-1986. It was registered as MFV 6380 by paying tax for one year as per the then scheme of Bombay Motor Vehicles Tax Act, 1958. In the year 1987, respondent No. 1 introduced a scheme by amendment to the said Act. Under the scheme, petitioner deposited one time tax of Luna Moped on 28-7-1987.
On retirement from service with Government of Maharashtra, petitioner shifted his residence from Aurangabad to Hyderabad since his only son is an Advocate practising at Andhra Pradesh High Court. Petitioner obtained no objection certificate from the office of respondent No. 3 and thereafter registered his Moped at Hyderabad with Registration No. ANS 1982 on 2-7-1988. Petitioner also paid one time tax at Hyderabad.
On 16-7-1988, petitioner applied to respondent No. 3 by registered post A.D. claiming refund of life time tax deposited with it. The same was received by respondent No. 3 on 21-7-1988 (Exhibit C). After reminder dated 25-8-1988, petitioner was replied by respondent No. 3 vide communication dated 9-2-1989. It was informed that refund of the tax in such cases is to be claimed within six months from the date of removal of the motor vehicle to other State as per Rule 12(3) and (4) of the Bombay Motor Vehicle Tax Rules, 1958. Since the application was submitted after expiry of more than six months since the removal of the vehicle outside the jurisdiction of respondent No. 3, the claim for refund could not be entertained. Further communication to respondent No. 2 was also responded with similar reply dated 27-4-1989 (Exhibits E F) and hence this writ petition challenging the limitation of six months prescribed by Rule 12(3) as also refund of life time tax deposited with respondent No. 3.
3. There is no dispute that section 9 of the Bombay Motor Vehicles Act, 1958, enables refund of tax in favour of owner of the vehicle where the registered owner surrenders to the taxation authority the certificate of taxation issued in respect of such vehicle declaring that he will not during the whole or part of the unexpired portion of the period for which tax has been paid, use or keep for use in any public place in the State the motor vehicle from the date specified in the declaration. Rule 12(3) of the Bombay Motor Vehicles Tax Rules, 1959, reads as follows :
"12. Application for refund under section 9 :
(1) ......... ......
(2) ....... ......
(3) No application claiming refund shall be entertained if it is made more than six months after the date on which non use is certified, the date of removal of the motor vehicle out of the State or the date of suspension or cancellation of the certificate of registration."
There is also no dispute that vehicle is removed beyond the territory of State of Maharashtra, and, therefore, is entitled to refund. Because in the application dated 16-7-1988, petitioner said that he had shifted his two wheeller vehicle to Hyderabad State in October, 1987, the respondent have taken a view that the application was beyond six months and, therefore, due to limitation prescribed by Rule 12(3), his claim for refund could not be entertained. According to petitioner, he paid the tax under the scheme of one time tax at Hyderabad and got the vehicle re-registered with the local RTO on 2-7-1988 (Exhibit A). Although it is contended in para 4 of the petition that according to the new scheme, the petitioner deposited one time tax of his Luna Moped on 20-7-1987, on reference to copy of registration produced at Exhibit 4, it can be seen that the registration was cancelled by RTO, Aurangabad, on 28-7-1987 and that does not seem to be the date on which one time tax was deposited with respondent No. 3
