K.S. Radhakrishnan, J.

Whether previous intimation claiming exemption from tax under Section 5 of the Kerala Motor Vehicles Taxation Act, 1976 read with Rule 10 of the Kerala Motor Vehicles Rules is a mandatory requirement for claiming exemption from payment of tax is the question which has been referred for our consideration.

2. A Bench of this court in Vairavan V. Joint Regional Transport Officer (2001 (2) KLT 564) held that strict adherence to the provisions is warranted for claiming exemption from tax. When this appeal came up for hearing before another Bench, the Bench felt that the matter requires reconsideration by a larger Bench expressing doubt whether it is the content or the form which is more material for seeking exemption from payment of motor vehicles tax.

3. The Kerala Motor Vehicles Taxation Act, 1976 is an Act to consolidate and amend the laws relating to the levy of tax on motor vehicles which are used or kept for use in the State at the rates specified for such purposes in the schedule. Section 3 (3) of the Act states that registered owner of, or any person having possession or control of a motor vehicle shall, for the purposes of the Act, be deemed to use or keep such vehicle for use in the State, except during any period for which no tax is payable on such motor vehicle under sub-section (1) of Section 5. Section 3 states that tax shall be levied on every motor vehicle used or kept for use in the State. Levy is within the legislative powers of the State Legislature as entry 57 List II authorizes levy on motor vehicles suitable for use on roads. Presumption is that every vehicle is deemed to have been kept for use in the State except in cases where claim under Section 5 (1) is made.

4. The apex court in Mahakoshal Tourist, Napier Town v. State of M.P. (20025 (7) SCC 245) interpreting the provisions of M.P. Motoryan Karadhan Adhiniyam, 1991 held that the presumption is that a motor vehicle for which a certificate of registration is current shall be deemed to be used or kept for use in the State. This is to ensure and safeguard the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public road of the State. At the same time, the interest of the bona fide owner is also safeguarded by enabling him to claim or obtain a certificate of non use from the prescribed authority and, in that case, the owner is required to give intimation of non-use. The above mentioned decision was followed by the apex court in Commissioner, Transport-cum-Chairman and others v. Tapan Kumar Biswas (AIR 2004 S.C. 4417) and held that merely because the certificate of fitness was cancelled, it could not be said that the vehicle had not been kept for use in the State. The apex court in State of Orissa v. Bijaya C. Tripathy (2004 (7) SCC 139) held that failure to give prior intimation and undertaking would lead to the presumption that the vehicle had been used or kept for use within the State.

5. The question that is posed for consideration in this case is whether the procedure laid down in Rule 10 read with Section 5 of the Act is to be scrupulously followed so as to claim exemption from tax. We may extract Section 5 as well as Rule 10 for easy reference.

Section 5.

5. Exemption from tax.- (1) In the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer from whom the endorsement of tax has been obtained, that such vehicle would not be used for such period and thereupon, the registered owner or such other person shall not be deemed to have used or kept for use the vehicle for such period, and no tax shall be payable in respect of such vehicle for such period.

(2) Nothing in sub-sectio