Palok Basu and R. P. Misra, JJ.@mdashRecovery proceedings have been initiated through recovery certificate Issued by the Regional Transport Officer concerned against the two petitioners for recovering additional tax leviable u/s 6 of the Uttar Pradesh Motor Vehicles Taxation Act, 1997 (hereinafter referred to as the ''New Taxation Act'') and the Rules framed thereunder known as U. P. Motor Vehicles Taxation Rules, 1998, published in the U. P. Gazette dated 10.11.1998 thereinafter referred to as the ''Rules''). Apart from questions of facts raised by the petitioners, the recovery proceedings have been challenged on the ground that there is no provision in the New Taxation Act so as to confer right on opposite parties to demand or levy or require payment of Addl. Tax on motor vehicles even if those are plying in the State without a valid permit under the Motor Vehicles Act [hereinafter referred to as the ''Central Motor Vehicles Act). Reliance has been placed on the Division Bench decision in H.C. Misra and Ors. v. State of U. P. and Ors. 2000 ALJ 2627.
2. Sri Sanjai Kumar Om in Writ Petition No. 12118 of 2001. Sri A. N. Tripathi in Writ Petition No. 12502 of 2001 and Sri Vishnu Pratap standing counsel have been heard at substantial length. No counter-affidavit has been filed by the State but nonetheless written arguments have been filed by the petitioners'' counsel as well as by Sri Vishnu Pratap, standing counsel. As prayed, these petitions are being disposed of by this common judgment at the time of admission.
3. It has to be pointed out that the New Taxation Act has been promulgated by the State in U. P. In response to the report of a Committee and is a composite law for levy and collection of all the taxes on all motor vehicles plying on the roads of the State of U. P. The New Taxation Act has come into force on 9.11.1998 through U. P. Gazette notification of even date. The Rules referred to above have been notified in the gazette dated 10.1-1.1998. The New Taxation Act, therefore, overrides and replaces the relevant provisions under the Central Motor Vehicles Act, the U. P. Motor Garl (Yatri Kar Adhinlyam), 1962 and the U. P. Motor Garl (Mal Kar Adhlniyam). 1964. Under the New Taxation Act. there are provisions for creating a special fund known as U. P. Road Transport Accident Relief Fund, which is expected to meet the contingent expenses which the State Government may have to bear for extending relief to persons suffering accident or their families.
4. The decision in H. C. Misra (supra) went into the issue of the constitutionality of the New Taxation Act. The very first paragraph of the said decision reads as under :
"In this cluster of writ petitions, the operators of public service vehicles used or adopted to be used for the carriage of passengers for hire or reward, have challenged the validity of the U. P. Motor Vehicles Taxation Act, 1997 (in short the ''Act'') and to be precise, levy thereunder of the additional tax. The challenge basically is rooted in the grounds. inter alia, that the legislation in question is beyond the legislative competence of the State Legislature; that it suffers from the vice of invidious discrimination and violates Article 14 of the Constitution ; that the levy of tax and additional tax under the Act Interdicts freedom of trade, commerce and intercourse guaranteed by Article 301 of the Constitution and is invalid and void owing to non-compliance with the requirement of the proviso to clause (b) of Article 304 of the Constitution and that levy of additional tax under the Act is unreasonable, excessive confiscatory and violative of Article 19(1)(g) of the Constitution."
The Division Bench discussed the matter threadbare and held :
"In the totality of the circumstances, we veer round to the view that the legislation in question does not suffer from the taint of any hostile discrimination merely because a different formula has been brought to bear for computing the additional tax payable by the vehicle owned and controlled by the U.P.S.R.T.C. The arrangement that the private vehicles being used by the corporation under a contract should not have been meted out the same treatment too does not appeal to us."
"The discrimination between stage carriages and contract carriages for the purpose of computation of tax liability too does not in fact violate Article 14 of the Constitution. A perusal of Fourth Schedule would be eloquent of the fact that the additional tax payable on stage carriages, covered by temporary permits issued for the purpose of conveyance of passengers on special occasions such as to and from fairs and religious gatherings and for marriage parties, tourist parties or such other reserved parties a fixed amount (Rs. 135 with seating capacity of not more than 42 excluding driver and conductor and Rs. 226 with seating capacity of more than 42 persons exclusive of driver and conductor) in addition to the tax payable under Clause (a) of Articles I, II, III and IV, as the case may be. Contract carriages being piled on temporary permits cannot be treated in parity with stage carriages being operated on permanent permits. The grant of remission to stage carriages for a period they are plied outside the State too does not Infringe upon equality Clause of Constitution and is rather based on reasonable nexus with the user of the vehicle in any public place in Uttar Pradesh. Fixation of different rates of additional tax for different zones cannot be dressed up as arbitrary. This has in fact been done after reckoning into consideration the condition of roads of respective zones of divisions, in such view of the matter we find no substance in the submission that the Act suffers from Invidious discrimination and/or is violative of Article 14 of the Constitution."
The only question that now remains for consideration is in the validity of the circular dated Jan 25, 1999 Issued by the Transport Commissioner, U. P. providing thereby that the additional tax payable in respect of vehicles being operated without permits would be computed at the highest rate specified in the Fourth Schedule and further provides that in case, a vehicle is operated without payment of additional tax and penalty u/s 22 of the Act and the operator moves an application for payment of additional tax in respect of such vehicle, the computation of additional tax shall be at the highest rate specified in the Fourth Schedule. The circular purports to have been Issued on the strength of Explanation (8) to Fourth Schedule, which provides that, "where any motor vehicle is taxable under more than one of the Articles of this schedule, the additional tax payable shall be at the highest appropriate rate". The challenge to the circular is grounded on the fact that the Fourth Schedule does not provide the rate at which additional tax may be levied in respect of vehicles being piled without permit. In our opinion, the circular dated Jan. 25, 1999, is without jurisdiction. The liability to pay additional tax u/s 6 is in respect of public service vehicles'' not exempted wholly or partially under the Act. Public Service Vehicles as the term is defined in Section 2(35) of the Motor Vehicles Act. 1988, "means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and Includes a maxi-cab, a motor-cab, contract carriage and stage carriage." The liability to pay additional tax u/s 6 is in respect of a ''public service vehicle i.e.. a motor vehicle, used or adapted to be used for carriage of passenger for hire or reward irrespective of whether a permit has been obtained or not in respect of such vehicle for carriage of passengers for hire or reward. Fourth Schedule provides rate of additional tax in respect of stage carriages Including stage carriages covered by temporary permits and contract carriages as well as vehicles covered by permit under sub-section (9) of Section 88 of the Motor Vehicles Act, 1988 read with Motor Vehicles (All India Permit for Tourist Transport Operators) Rules, 1993, issued by the authority having seisin outside the State of Uttar Pradesh but it does not provide the yard-stick and measure of taxation of motor vehicles being operated without permits. Fixation of rate or measure of tax being an essential legislative function could not be performed by the Transport Commissioner, The operators of such vehicles, in our opinion, may be subject to such penal liabilities as may be permissible in law for violating Section 16 of the Motor Vehicles Act, 1988, but they cannot be held liable to pay additional tax at the highest rate specified in Fourth Schedule in the absence of any specific stipulation or provision in the statute in that respect. The impugned circular, therefore, cannot be sustained being ultra vires and sans any authority of law."
"We find no substance in the submission made by the learned counsel. Clause (iv) (a) of subsection (1) of Section 9 provides that additional tax shall be payable in advance on or before 15th day of calendar month at the rate of one-third of the rates specified in the Fourth Schedule and the additional tax payable u/s 6 in respect of vehicles covered by temporary permits issued for the conveyance of passengers on special occasions such as to and from fairs and religious gathering or to carry marriage party, tourist party or such other reserved parties, shall be paid at the time of issuance of such temporary permits."
"In the result, the challenge to the validity of the Act falls and the writ petitions in that respect are dismissed. Interim orders are discharged. The impugned circular dated 25.1.1999 issued by the Transport Commissioner Is, however, quashed being ultra vires the statute and sans Jurisdiction."
5. After the aforesaid decision, the admitted position is that the said circular has been withdrawn by a subsequent G.O. issued by the State Government on 17.1.2001. It may respectfully be pointed out that some relevant provisions as are noted hereinafter, were not placed before the said Division Bench which thus do not find mention in the Judgment.
6. The question which still remains to be decided is whether a motor vehicle which may be plying in the State of U. P. without a valid permit or registration can be subjected to payment of or, tax and additional tax under the New Taxation Act in accordance with the provisions contained in Sections 4, 5 or 6 thereof, as may be applicable to the vehicle concerned.
7. The law on the point of taxing statutes'' requirements is more than settled by the decision of the Supreme Court in Nathu Ram Agarwal v. State of M. P., 1999 (8) SCO 667. It has been laid down that no tax can be Imposed except by way of statute and that the language of the taxing statute should be plain and unambiguous leaving no scope of any interpretation by adding or subtracting or substituting any word or expression in the said statute. This being the legal position, all that is now required to be seen is whether there is provision which is unambiguous under which such vehicles which may be found plying in the territory of State of U. P. without registration or permit or both, as the case may be, can be subjected to additional tax or any other tax. If the answer may be yes, then at what rate. The further question will be whether the provisions in the New Taxation Act for payment of taxes and additional taxes under Sections 4, 5 and 6 create liability over and above the penalty or fine leviable for contravening Central Motor Vehicles Act or the New Taxation Act. Therefore, after running through all the sections of the New Taxation Act, some specific provisions existing in the New Taxation Act, which refer to the corresponding entries in the relevant schedule in the respective part creating liability to pay Tax or additional tax or both, as the case may be, and providing for penalty and fine also are noted below for ready reference :
8. Sections 1 to 3 need not be quoted. However, Sections 4 to 7 are quoted below :
Section 4. Imposition of tax.-
(1) Save as otherwise provided in this Act or the Rules made thereunder, no motor vehicle other than a transport vehicle, shall be used in any public place in Uttar Pradesh unless a one-time tax at the rate applicable in respect of such motor vehicle, as specified in Part ''B'' of the First Schedule has been paid in respect thereof :
Provided that in respect of an old motor vehicle, instead of a one-time tax, annual tax at the rate applicable to such motor vehicle as specified in Part ''C'' of the First Schedule may be paid.
(2) Save as otherwise provided by or under this Act no transport vehicle shall be used in any public place in Uttar Pradesh unless a tax at the rate applicable to such motor vehicle, as specified in Part ''D'' of the First Schedule has been paid in respect thereof.
(3) Where any motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid, is operated as a transport vehicle the tax payable under
this Act on such transport vehicle shall be payable.
S. 5. Additional tax on goods carriages.--(1) Save as otherwise provided by or under this Act no goods carriage shall be operated in any public place in Uttar Pradesh, unless there has been paid in respect thereof, in addition to the tax payable u/s 4. an additional tax at the rate applicable to such goods carriage specified, as the case may be, in,--
(a) Third Schedule, in the case of the goods carriage plying under permits granted by authorities having jurisdiction within Uttar Pradesh, or
(b) Part ''B'' of the Third Schedule, in the case of goods carriage operating under national permit granted under sub-section (12) of Section 88 of the Motor Vehicles Act, 1988.
(c) Sixth Schedule, in the case of the goods carriage plying under permits granted by authorities having jurisdiction outside Uttar Pradesh for Inter State route party lying in Uttar Pradesh :
Provided that the State Government may, by notification, increase by not more than fifty per cent, the rates of additional tax specified in the said schedules.
(2) Where any reciprocal agreement relating to taxation of goods carried by road is entered into between the Government of Uttar Pradesh and any other State Government or a Union Territory, the levy of additional tax under sub-section (1) shall, notwithstanding anything contained in the said sub-section, be in accordance with the terms and conditions of such agreement :
Provided that the additional tax so levied shall not exceed the additional tax which could have otherwise levied under this Act.
Section 6. Additional tax on public service vehicle--(1) Save as otherwise provided in this Act or the Rules made thereunder, no public service vehicle, other than those owned or controlled by the State Transport undertaking shall be operated in any public place in Uttar Pradesh unless there has been paid in respect thereof, in addition to the tax payable u/s 4, an additional tax at the rate applicable to such public service vehicle specified in the Fourth Schedule :
Provided that the State Government may, by notification, increase by not more than fifty per cent, the rates of additional tax specified in the said schedule.
(2) The additional tax in respect of a public service vehicle owned or controlled by a State Transport undertaking shall be levied and paid in accordance with the formula specified in the Fifth Schedule.
(3) Where a public service vehicle is wholly or partially exempted from the payment of additional tax by or under this Act a surcharge for the purpose of the fund established u/s 8 shall be levied on its operator at the rate of five per cent of the additional tax that would have been payable on such vehicle had it not been so exempted and such amount shall be credited to the said Fund.
Section 7. Classification of routes for determining tax or additional tax.--(1) For the purpose of determining the amount of the tax payable in respect of transport vehicles under the First Schedule or for determining additional tax payable under the Fourth Schedule all routes in Uttar Pradesh shall be classified by the prescribed authority as "A-Class" routes or "B-Class" routes in such manner as may be prescribed.
(2) Until the routes are classified under sub-section (1) :
(i) "Special Class" and "A-Class" routes classified under the United Provinces Motor Vehicles Taxation Act, 1935, shall be the "A-Class" routes under this Act, and
(ii) "B-Class" and "C-Class" routes, classified under that Act, shall be the "B-Class" routes under this Act.
9. While Section 8 need not be quoted, Sections 9 to 20 are quoted below :
Section 9. Payment of tax and penalty.--(1) Subject to the provisions of Section 11 :
(i) the tax payable under sub-section (1) of Section 4 shall be paid at the time of the registration of the vehicle under the Motor Vehicles Act, 1988 :
Provided that in respect of an old motor vehicle, the tax shall be payable in advance on or before the fifteenth day of January in each year ;
(ii) the tax payable under sub-section (2) of Section 4 shall be payable in advance for each quarter at the time of the registration of the vehicle under the Motor Vehicles Act. 1988 and thereafter on or before the fifteenth day of January, April, July and October in each year ;
(iii) the additional tax payable under Clause (a) of subsection (1) of Section 5 shall be payable in advance on or before the fifteenth day of January, April. July and October in each year ;]
(iv) (a) the additional tax u/s 6 (other than a case to which Sub-clause (b) applies) shall be payable in advance on or before fifteenth day of each calendar month at the rate of one-third of the rate specified in the Fourth Schedule ;
(b) the additional tax payable u/s 6 in respect of vehicles covered by temporary permit issued for the conveyance of passengers on special occasions, such as to and from fairs and religious gatherings or to carry marriage parties, tourist parties or such other reserved parties shall be paid at the time of issuance of such temporary permit.)
(2) When any person transfers a motor vehicle registered in his name to any other person, then without prejudice to the liability of the transferor in this regard, the transferee shall be liable to pay the arrears of tax, additional tax and penalty, if any. In respect of the motor vehicle so transferred, due on or before the date of its transfer, as if the transferee was the owner of the said motor vehicle during the period for which such tax, additional tax or penalty is due.
(3) Where the tax or additional tax in respect of a motor vehicle is not paid within the period specified in subsection (1), in addition to the tax pr the additional tax due, a penalty at such rate not exceeding twenty five per cent of the due amount, as may be
prescribed, shall be payable, for which the owner and the operator if any shall be Jointly and severally liable.
(4) in computing the amount of tax, additional tax or penalty under this Act the amount shall be rounded off to the nearest rupee, that is to say a fraction of a rupee being fifty palse or more shall be rounded off to the next higher rupee and any fraction less than fifty palse shall be ignored.
Section 10. Vehicles not to be used in Uttar Pradesh without payment of tax.--(1) Notwithstanding anything contained in Section 9, no transport vehicle shall ply in Uttar Pradesh under a temporary permit granted under the Motor Vehicles Act, 1988, by an authority having jurisdiction outside Uttar Pradesh unless there has been paid in respect thereof,--
(i) a tax u/s 4 calculated at the appropriate rate specified in the First Schedule and in the manner provided under Sub-section (2) for the number of weeks of its use or stay in Uttar Pradesh ;
(ii) an additional tax u/s 5 or Section 6, as the case may be, calculated at the appropriate rate specified in the Sixth Schedule.
(2) For the purpose of levy and payment of tax under Clause (i) of Sub-section (1), the tax payable for any two weeks or part thereof shall be 2/13th of the rate specified in the First Schedule.
(3) if such transport vehicle is found plying in Uttar Pradesh without payment of the tax or additional tax payable under this Act such tax or additional tax along with a penalty, equivalent to ten times of the due tax or additional tax shall be payable.
Section 11. Amount payable on liability occurring for the first time.---- When, in respect of a transport vehicle, the tax or the additional tax becomes payable for the first time after the commencement of a quarter the tax or additional tax payable u/s 4 or Section 5 or Section 6, as the case may be, shall be one third of the appropriate quarterly tax for each calendar month or part thereof in respect of which the tax or additional tax is payable.
Section 12. Non-use of vehicle and refund of tax.--(1) When any person who has paid the tax in respect of transport vehicle, proves to the satisfaction of the Taxation Officer in the prescribed manner that the motor vehicle in respect whereof such tax has been paid, has not been used for a continuous period of one month or more since the tax was last paid, he shall be entitled to a refund of an amount equal to one-third of the rate of quarterly tax payable in respect of such vehicle for each (thirty days) of such period for which such tax has been paid :
Provided that no such refund shall be admissible unless such person has surrendered the certificate of registration, the token, if any, issued in respect of the vehicle and the permit, if any. to the Taxation Officer, before the period for which such refund is claimed.
(2) Where the operator or, as the case may be, the owner of a motor vehicle, does not Intend to use his vehicle for a period of one month or more he shall, before the date the tax or additional tax, as the case may be, is due, surrender the certificate of registration, the token, if any, issued in respect of the motor vehicle and the permit, if any, to the Taxation Officer of the region where the tax or additional tax was last paid and on such surrender, no tax or additional tax under this Act shall be payable in respect of such vehicle for each complete calendar month of the period during which the vehicle remains withdrawn from use and the aforesaid documents remain surrendered with the Taxation Officer :
Provided that in case such vehicle is found plying during the period when Its documents as mentioned in this Sub-section remain surrendered with the Taxation Officer, such owner or operator, as the case may be, shall be liable to the tax as if the said documents were not surrendered and shall also be liable to the penalty payable under Sub-section (3) of Section 9.
(3) Where the owner of a motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid under this Act proves to the satisfaction of the Taxation Officer in prescribed manner that such motor vehicle has not been used for a continuous period of one month or more, he shall be entitled to a refund of such tax at the rates specified in part ''A'' of the Second Schedule for the said period ;
Provided that no such refund shall be admissible, unless the certificate of registration and the token, if any, issued in respect of the vehicle are surrendered by the owner with the Taxation Officer :
Provided further that the total amount of refund under subsection (3) any portion of the period being less than a month, shall be ignored.
(4) in calculating the amount of refund under Sub-section (3) any portion of the period being less than a month, shall be Ignored.
(5) The owner of a motor vehicle other than a transport vehicle, in respect whereof one-time tax has been paid under this Act shall be entitled to refund of such tax at the rates specified in part ''B'' of the Second Schedule on the ground that he has, after payment of such tax, paid tax in respect of such vehicle under any enactment relating to any tax on motor vehicles in any other State or Union Territory as a consequence of such vehicle having been brought over permanently to such other State or Union Territory or that such motor vehicle has been converted into a transport vehicle or that the registration of such motor vehicle has been cancelled.
(6) Where any person who has paid the tax other than one-time tax in respect of an old motor vehicle, proves to the satisfaction of the Taxation Officer that the motor vehicle, in respect of which such tax has been paid, has not been used for a continuous period of one month or more since the tax or instalment was last paid, he shall be entitled to a refund of an amount equal to one-twelfth of the rate of annual tax payable in respect of such vehicle for each complete calendar month of such period for which such tax has been paid :
Provided that no such refund shall be admissible unless such person has surrendered the certificate of registration and the token, if any, issued in respect of the vehicle to the Taxation Officer, before the period for which such refund is claimed.
(7) An operator of a transport vehicle entitled to any refund of tax under Sub-section (1), shall also be entitled to refund of such portion of the additional tax paid u/s 5 or, as the case may be, u/s 6, as is attributable to the period for which he is entitled to refund under Sub-section (1) ; and the amount of such refund shall be calculated on the same principle as is laid down in the said Sub-section.
[(8) Where the operator, or as the case may be, the owner of a motor vehicle is unable to use his motor vehicle due to an accident of the said vehicle and the certificate of registration, the token, if any Issued in respect of the said vehicle and the permit, if any are surrendered to the Taxation Officer within a week from the date of such accident together with a copy of the first information report such surrender shall be deemed to have been made on the date of the accident.
Section 13. Declaration by person keeping vehicle for use--(1) The owner or operator of every motor vehicle shall make a declaration in respect of it in the prescribed form and shall deliver the declaration within the prescribed time to the Taxation Officer and shall pay to him the tax or the additional tax which he appears by such declaration to be liable to pay in respect of such vehicle, as required by or under this Act.
(2) Where a motor vehicle is altered so as to render the owner or operator thereof liable to payment of enhanced tax or additional tax u/s 14, such owner or operator shall make, within the prescribed time, an additional declaration in the prescribed form showing the nature of the alteration made and shall deliver It to the Taxation Officer and shall pay to him the difference in tax or additional tax payable u/s 14.
Section 14. Payment of difference in tax.--Where any motor vehicle in respect of which the tax or additional tax has been paid is altered in such manner as to cause the vehicle to become a vehicle in respect of which a higher rate* of tax or additional tax is payable, the owner or operator thereof shall in respect of such vehicle be liable Jointly and severally to pay the difference between the amount of tax or additional tax payable after its being so altered.
Section 15. Record of payment of the tax in the certificate of registration and grant of token.--(i) The Taxation Officer shall record the payment of tax in the certificate of registration granted in respect of the motor vehicle and in the case of a transport vehicle shall also issue a token in the prescribed form.
(2) The Taxation Officer shall record payment of additional tax u/s 5 or Section 6, as the case may be. In the certificate prescribed in this behalf, to be issued by him.
Section 16. Power to stop vehicle and enter.--The driver of a motor vehicle shall cause the vehicle to stop and remain stationary when required so to do by the Taxation Officer, or any other officer authorised by the State Government in this behalf, in order to enable him to carry out any duty imposed on him by or under this Act and such authority or other officer may also enter the vehicle and travel in it for doing so.
Section 17. Time table to be furnished.-
(1) Every operator of stage carriage shall, within such time and in such manner as may be prescribed, furnish to the Taxation Officer a table regulating timings of arrival and departure of his stage carriage, as well as the number of single trips made in a quarter and such other particulars connected with his business, as the Taxation Officer may by order, from time to time, require.
(2) Any alteration in the timings or particulars referred to in Sub-section (1), shall be intimated by the operator to the Taxation Officer within fifteen days of such alteration taking effect.
Section 18. Appeal. --(1) Any person aggrieved by an order of the Taxation Officer made u/s 12 may, within thirty days from the date of receipt of such order, prefer an appeal to the appellate authority.
(2) The appellate authority may, after giving the appellant an opportunity of being heard pass such orders as it thinks fit.
(3) Every order made by the appellate authority in an appeal under Sub-section (1) shall be final.
Section 19. Punishment of offences. Whoever contravenes any of the provisions of this Act or the Rules made thereunder shall be punishable with fine which may extend to five hundred rupees and for the second or subsequent similar offence, be punishable with fine which may be extend to one thousand rupees :
Provided that no Court shall, except for reasons to be recorded in writing, impose a fine of less than five hundred rupees for any such second or subsequent offence.
S, 20. Recovery of tax.--(1) Arrears of any tax or additional tax or
penalty payable under this Act shall be recoverable as arrears of land revenue.
(2) The tax, the additional tax and penalty payable under this Act shall be first charge on the motor vehicle including its accessories, in respect whereof it is due.
10. Similarly, while Section 21 need not be quoted. Section 22 is quoted below :
Section 22. Detention of transport vehicle in case of non-payment of tax.-
(1) Where an officer authorised by the State Government in this behalf, has reason to believe that a transport vehicle has been or is being used by a person without payment of tax, additional tax or penalty if any, he may seize and detain the transport vehicle and for the purpose take, or cause to be taken, such steps as may be considered, by him necessary, for the safe-custody of the transport vehicle and, in particular, require the driver of such vehicle to convey it to the nearest police station or any other place specified by him :
Provided that the officer seizing the vehicle, shall, within forty-eight hours of such seizure, send a report of such seizure to the concerned Taxation Officer.
(2) A transport vehicle seized or detained under this section shall be released by the Taxation Officer immediately on payment of the tax. additional tax, penalty or other amount due for the non-payment whereof the vehicle was so seized or detained.
11. Likewise. Sections 23 and 24 need not be quoted, Section 25 is quoted below :
Section 25. Cognizance of offences.--No court shall take cognizance of an offence punishable under this Act except on a report in writing of the facts constituting such offence made by the Taxation Officer.
12. Lastly. Sections 26 to 29 need not be quoted, while Section 30 is quoted below :
Section 30. Repeal and savings.--(1) The United Provinces Motor Vehicles Taxation Act, 1935, the Uttar Pradesh Motor Gad(Yatri-Kar) Adhinlyam, 1962, and the Uttar Pradesh Motor Gadi (Mal-Kar) Adhiniyam, 1964, are hereby repealed.
(2) Without prejudice to the generality of Section 6 of the Uttar Pradesh General Clauses Act, 1904, the repeal of the enactments referred to in Sub-section (1) shall not affect any liability incurred before the date of such repeal and the proceedings under such enactment pending on the said date before any competent authority or Court, and all proceedings relating to any such liability as aforesaid instituted after the commencement of this Act, shall be continued and disposed of as if this Act had not come into force.
13. Sub-section (1) of Section 6 provides that no public service vehicle shall be operated in any public place in U. P. unless additional tax has been paid in respect thereof, in addition to the tax payable u/s 4. The rate of additional tax applicable to such public service vehicles is specified in the 4th Schedule. The language of Section 6 is more than clear, apparent and unambiguous. Sub-section (1) of Section 10 makes a prohibitory provision saying that no transport vehicle shall ply in U. P. unless there has been paid in respect thereof a tax u/s 4 calculated appropriately or an additional tax under Sections 5 or 6 as the case may be calculated appropriately. Subsection (3) of Section 10 provides that if such vehicle is found plying in U. P. without payment of tax or additional tax payable under the New Taxation Act, such tax or additional tax along with penalty equivalent to 10 times of the due tax or additional tax shall be payable. These two Sub-sections of Section 10, therefore, clearly provide the liability for paying tax or additional tax as the case may be, for those vehicles which ply contrary to the provisions created under the Central Motor Vehicles Act or the New Taxation Act. It may be pointed out that the expression Transport Vehicle means a goods carriage or public service vehicle (See Section 2 (n)).
14. Section 20 of the New Taxation Act permits arrears of any tax or additional tax or penalty payable under the New Taxation Act to be recoverable as arrears of land revenue. Section 22 delineates the power of authorised officers to seize the vehicle and detain it if he has reason to believe that plying is being done without payment of tax, additional tax or penalty.
15. The detailed examination of the various provisions would Indicate that the New Taxation Act contains specific provisions which unequivocally create liability to pay tax or additional tax or both, as the case may be, over and above the penalty or fine amount which may be payable for contravening any of the provisions of the Central Motor Vehicles Act or the New Taxation Act.
16. The impossibility of penalty or fine is no bar to the recovery of taxes or additional taxes from the vehicles plying contrary to the provisions of the New Taxation Act and/or the Central Motor Vehicles Act. There is, an absolute bar placed on the vehicles owners to ply those vehicles in the territory of the State of U. P. without paying the tax or the additional tax, as the case may be. Therefore, it has been provided in the simplest terms that the liability to pay the tax and/or additional tax, as the case may be, is attached to the very plying of the vehicles. No other condition or contravention need to exist for demanding the said tax or additional tax.
17. The only question now surviving is the rate at which the taxes or additional taxes have to be paid. It may be pointed out that in the instant two writ petitions, it is the demand of additional tax which is primarily under challenge, therefore. the provisions directed towards that end are being examined hereinafter.
18. The petitioners'' counsel contended that even Fourth Schedule shall not be attracted to vehicles when found plying without permit or without registration, as the case may be, while the respondents* counsel argues that all the vehicles found plying whether registered or unregistered, whether with permit or without permit, shall have to pay additional tax, once such vehicles falls within Section 6 of the New Taxation Act.
19. After hearing the learned counsel for the parties on this Issue at great length and examining the provisions already noted above as also the relevant provisions in the 4th Schedule, discussed hereinafter, the conclusion is irresistible that all the vehicles shall have to pay additional tax which are covered by the provisions of Section 6 of the New Taxation Act whether or not they have permit. Similarly, tax shall have to be paid on those vehicles if liability is creatable u/s 4 of the Act.
20. Fourth Schedule, appended to the New Taxation Act has the heading : "Rates of Additional Tax at Stage Carriage." It may be pointed out that the expression "stage carriage" has not been defined under the New Taxation Act but under the Central Motor Vehicles Act the expression "stage carriage" means : "motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for Individual passengers, either for the whole journey or for stages of the Journey." Reference to the expression stage carriage is to be found in Section 2 (d) and it has already been noted above that the expression "transport vehicle" as defined in Section 2 (n) of New Taxation Act means goods carriage or a public service vehicle. It may further be noted here that the expression public service vehicle is also to be found in Section 2 (i). And, further that Section 6 in its very terms applies on public service vehicles and requires those vehicles to pay the additional tax in addition to the tax payable u/s 4 of the New Taxation Act. There are V categories of vehicles which are required to pay additional taxes. Each of these V categories has distinct provisions for payment of additional taxes depending either on the type of the vehicle or the region of operation ; and the last category is applicable on contract carriages. (It may be noted here that though initially there were five categories but Category III has been omitted by Ordinance No. 4 of 1999).
21. Clause (VIII) of Category V provides that :
"Where any motor vehicle is taxable under more than one of the articles of the schedule, the additional tax payable shall be at the highest appropriate rate."
The aforesaid Clause VIII postulates the payability of additional tax at the highest appropriate rate on such vehicles which become taxable under more than one of the articles of Schedule IV.
22. There can be absolutely ho doubt that a vehicle plying in the State of U.P. without any permit under the Central Motor Vehicles Act or payment of additional tax u/s 6 of the New Taxation Act would be clearly covered by all the four categories of Schedule IV. Once the plying in Uttar Pradesh is being done without a valid permit, per se applicability of more than one of the four categories on such a vehicle is Indicated. The restriction on category of vehicle, the restriction on category of distance, and the restriction on category of region as stand provided in IVth Schedule, would stand attracted simultaneously to that vehicle which is found plying without permit and without payment of additional tax in the State of U. P. Therefore, there is no ambiguity in the provisions and thus demanding and levying of additional tax at highest appropriate rate on vehicles plying in the State of Uttar Pradesh on the basis of the aforesaid clause (VIII) in the Schedule-IV of the New Taxation Act.
23. Having thus discussed all "the legal points raised by the parties'' counsel It is held that the New Taxation Act empowers levying of additional taxes on vehicles running without permit and without payment of additional tax. Therefore, there is nothing wrong in the orders passed by the Taxation Officer concerned in asking the petitioners to deposit the additional tax over and above the payment of penalty.
24. In this connection, it may be pointed out that the question posed, and answered towards the end of the decision in U. C. Misra (supra) may have been referred to larger Bench but since the State Government has already withdrawn the circular which was quashed in the said decision, such a course is no more necessary. It has already been noted above that the main challenge to the New Taxation Act was negatived by the learned Division Bench and it was only the circular applying the highest rate for additional taxes through a circular was renounced by the said Bench. No such circular now exists. The provisions imposing the rate/rates as exist in the New Taxation Act, have been examined in detail. Had all the provisions been placed before the learned Division Bench, even the circular may have been saved.
25. Coming now to the factual issues raised in these two writ petitions it may be said that upon determination of those will depend the ultimate orders to be passed.
26. In Civil Misc. Writ Petition No. 12118 of 2001 of Ranjeet Singh, a sum of Rs. 82,313 has been demanded and the petitioner has challenged the citation for the said amount, which relates to Commander Jeep having registration No. UP-03-0670. Shri Sanjay Kumar Om argued that the entire period for which the said additional tax has been levied could not have been made the basis for the demand as the vehicle was not used for some period. It has further been argued that the vehicle was not seized while plying. Shri Vishnu Pratap has argued that the demand is correct but as noted above, no counter-affidavit on facts has been filed. These questions of fact have got to be gone Into. Under the circumstances it is hereby directed that the petitioner shall pay under protest Rs. 25,000 in cash or by bank draft to the Taxation Officer, Motor Vehicles Department, Rampur, within one month from today along with a certified copy of this order and a representation raising such questions of facts as advised. The representation will be decided with a speaking order and if any excess amount shall stand deposited, it will be refunded to the petitioner. If some further demand is made the petitioner shall be allowed one month''s time from the date of the order to pay the same.
27. In Civil Misc. Writ Petition No. 12502 of 2001 of Ram Naresh Singh a sum of Rs. 1,52,048 has been demanded and the petitioner has challenged the citation for the said amount, which relates to a bus having Registration No. UHA-0425.
28. It is admitted that the petitioner''s vehicle was seized while plying. Some arguments were advanced by Shri Ashok Nath Tripathi that the entire period for which the demand has been made may not be added. This is a question of fact because the petitioner says that tax liability from the period 1.11.1998 to 31.8.1999 should be excluded. Sri Vishnu Pratap, standing counsel has argued that the demand is correct but as stated above no counter-affidavit has been filed. Under the circumstances It is hereby directed that the petitioner shall pay under protest Rs. 50,000 in cash or by bank draft with the Taxation Officer, Motor Vehicles Department, Gorakhpur, within one month from today along with a certified copy of this order and a representation raising such questions of facts as advised. The representation will be decided with a speaking order and if any excess amount shall stand deposited, it will be refunded to the petitioner. If some further demand is made the petitioner shall be allowed one month''s time from the date of the order to pay the same.
29. Both the writ petitions, therefore, stand finally disposed of in the aforesaid terms.
30. Parties will bear their costs.
