ORDER
N.K. Patil, J.
1. The petitioner, questioning the correctness of the order on the file of the first respondent dated 27th December 2002 in Proceedings No. RTO/U/KA-19-A-3333/Tax/02-03 and the confirmation order on the file of the second respondent in proceedings No. DTC/S/Appeal/ tax32/2002-03 dated 2nd September 2003 vide Annexures A and B respectively, has presented the instant Writ Petition.
2. The undisputed facts are that, the petitioner herein is the owner of bus bearing No. KA-19/3333. Since, the said vehicle was required for major repair, the petitioner filed an application for permission to surrender the documents while intimating the non-use of the vehicle for the purpose of tax exemption as per the provisions of the Karnataka Motor Vehicles Taxation Act. The surrender was accepted by the first respondent.
3. When things stood thus, in the surrender application, the place of garage for the vehicle was mentioned as M/s. Aravind Motors, NH-17, Kundapur. Due to bona fide mistake, after intimating the surrender, the said vehicle was shifted to M/s. Navdurga Bus Body Repairs, NH-17, Udayavara, Udupi and thereafter from one garage to another garage and this was not brought to the notice of the respondents by the petitioner since he was out of station. Thereafter, this has been informed to the concerned authority. The first respondent has issued the tax demand notice demanding a sum of Rs. 02,02,104/- for the period between 1st July 2001 to 31st March 2003. Feeling aggrieved by the tax demand notice dated 27th December 2002, the petitioner filed an appeal on the file of the second respondent. The appellate authority has rejected the appeal filed by the petitioner. Assailing the correctness of the impugned tax demand notice and the order passed by the second respondent, the petitioner has presented the instant Writ Petition.
4. The principal submission canvassed by the learned Counsel appearing for the petitioner is that, the tax demand notice issued by the first respondent is contrary to the material on record. To substantiate his submission, he has taken me through the order passed by the second respondent and submitted that, a reference has been made that the Motor Vehicles Inspector has inspected the vehicle on 2nd May 2002 and submitted that the vehicle found at Navdurga Bus Body Repairs, NH-17 is not in condition for plying on the road. Further, to substantiate his submission, he placed reliance on the order passed by this Court on 1st July 1991 in Writ Petition No. 8777/1991 and pointed out that, the appellate authority has failed to take into consideration the report of the Vehicle Inspector which makes it clear that the vehicle was not capable of being used on road as it needed major repairs and submitted that, this Court has held that the report of the Motor Vehicles Inspector ought to have been taken into consideration and the appellate authority ought not to have confirmed the tax demand notice issued by the first respondent for the period from 1st April 2002 to 31st March 2003. He submitted that, so far as tax demand notice for the said period is concerned, the same is not sustainable and is liable to be set aside and to that effect, the order passed by the appellate authority and the tax demand notice issued by the first respondent is liable to be modified and it requires reconsideration in accordance with law.
5. Per contra, the learned Government Pleader appearing for respondents, inter alia, contended and justified the orders passed by the authorities. He submitted that, the petitioner is liable to pay the tax between 1st July 2001 and 31st March 2002 and further submitted after going through the order passed by the second respondent that, at page 5 of the order in the middle, there is a specific reference by the appellate authority that Motor Vehicles Inspector has inspected the vehicle on 2nd May 2002 and has stated that the vehicle found at M/s. Navdurga Garage NH-17 is not in good condition to ply on the road. Therefore, this aspect of the matter, requires reconsideration.
6. After hearing the learned Counsel appearing for petitioner and the learned Government Pleader appearing for respondents and after careful perusal of the impugned tax demand notice and the order passed by the second respondent, on the face of records, it is seen that, the respondents 1 and 2 have committed an error and illegality in so far as it relates to assessment of tax made by the first respondent for the period between 1st April 2002 to 31st March 2003 and subsequently confirmed by the appellate authority, by its order dated 2nd September 2003 which is contrary to the material on record. It is significant to note that, the appellate authority has lost sight of the report of the Motor Vehicles Inspector, which makes it clear that, the vehicle found at M/s. Navdurga garage NH -17 is not capable of being used on road as per his report dated 2nd May 2002. This aspect of the matter has been overlooked by respondents 1 and 2. Therefore, the same requires reconsideration as rightly pointed out by the learned Counsel appearing for the petitioner and as held by this Court in its order dated 1st July 1991 in Writ Petition No. 8777/1991. If the ratio of the order passed by this Court is applied, the same has direct bearing on the facts of this case. This Court has held that, the appellate authority has lost sight of one significant fact that is the report of the Motor Vehicles Inspector, which makes it clear that the vehicle was not capable of being used on road as it needed major repair and that being so, charge under Section 3 of the Act itself was not attracted and in such cases, the question of claiming exemption under the provisions of the Act does not arise. Taking into consideration the ratio of the law laid down by this Court and having regard to the facts and circumstances of the case, as stated above, I am of the view that the tax demand notice issued by the first respondent and the order passed by the second respondent are liable to be modified and the same requires reconsideration afresh.
7. Having regard to the facts and circumstances of the case, as stated above, the Writ Petition filed by the petitioner is partly allowed and is disposed of with the following directions:-
i) The Writ Petition filed by the petitioner is partly allowed.
ii) The tax demand notice issued by the first respondent dated 27th December 2002 in No. RTO/U/KA-19-A-3333/TAX/02-03 in so far as it relates to period between 1st April 2002 to 31st March 2003 and the confirmation order dated 2nd September 2003 in No. DTC/ SI/Appeal/Tax 32/2002-03 are hereby set aside and the matter stands remitted to the first respondent for reconsideration afresh in accordance with law and decide the same after affording an opportunity to the petitioner.
iii) It is made clear that the demand in the tax demand notice issued by the first respondent for the period between 1st July 2001 to 31st March 2002 is confirmed.
iv) The petitioner is directed to pay the tax from 1st July 2001 to 31st March 2002 amounting to Rs. 86,184/- within three weeks from the date of receipt of a copy of this order. Consequently, the tax demand notice issued by the first respondent and the order passed by the second respondent are confirmed for the said period.
v) If the petitioner fails to deposit the tax in a sum of Rs. 86,184/-within the stipulated time, as stated above, the respondents are entitled to proceed with the matter for recovery of the said amount in accordance with law.