@JUDGMENTTAG-ORDER
A.S. Bopanna, J.@mdashSri Shivayogiswamy, learned Government Advocate to accept notice for the respondent and file memo of appearance within a period of four weeks from today.
2. The petitioner is before this Court assailing the order dated 15.03.2010. By the said order, the Joint Commissioner for Transport (Bangalore Urban and Rural), Bangalore, who is the Appellate Authority has dismissed the appeal filed by the petitioner herein for non-compliance of the interim order by which the Appellate Authority had directed the petitioner to deposit the amount of tax as demanded at 50% in cash and has directed the petitioner to furnish bank guarantee for the balance of 50%.
3. The petitioner while assailing the said order would contend that in fact the petitioner had sold the vehicle and one Sri Kandaswamy had purchased the same and has been operating. As such the petitioner is not liable to pay the amount as demanded by the authorities. With regard to this aspect of the matter, at the outset, it is to be stated that the same is an issue which in any event would have been considered by the Appellate Authority on merits, since the petitioner has preferred the appeal as contemplated in law and has urged the said ground also.
4. In that view of the matter, the only ground that arises for consideration in this petition is with regard to the correctness or otherwise of the order dated 15.03.2010, which is impugned in this petition. In this regard, it is to be noticed that in a pending appeal, the Appellate Authority would have the discretion to pass such interim orders insofar as the payment of the amount due. The proviso to Section 15 of the Karnataka Motor Vehicles Taxation Act, 1957 (for short the ''Act'') would provide such discretion to the Appellate Authority. In the instant case, the Appellate Authority while exercising such discretion had directed the petitioner herein to deposit 50% by cash and for the remaining extent bank guarantee was ordered to be furnished. Insofar as the subsequent action of the Appellate Authority in dismissing the appeal for noncompliance of the interim order, in any event, no fault could be found with the Appellate Authority in a normal circumstance.
5. However, while stating so, the circumstance as put forth by the petitioner would have to be noted and in any event, the discretion is to be left to the Appellate Authority. To that extent, what is to be noticed is that though the provision in Section 15 of the Act and also the Rule in 31(A) of the Karnataka Motor Vehicles Taxation Rules, 1957, provide with regard to the discretion to the Appellate Authority and the manner in which the deposit as well as the security is to be furnished, ultimately it is the discretion of the Appellate Authority. Therefore, in such a situation, if the circumstances as stated by the petitioner herein appeals to the Appellate Authority, it would still be open for the Appellate Authority to consider as to whether 50% as ordered by the Appellate Authority to be deposited by way of cash would be justified and be necessary in the facts and circumstances of the present case or as to whether any smaller portion of the amount is to be ordered by way of deposit in cash and as to whether to the balance amount, the bank guarantee or such other security is to be furnished.
6. Therefore, the appropriate course while disposing of this petition would be to restore the Appeal No. 08 (Tax) 09-10 on the file of the respondent-Appellate Authority. Further, liberty is reserved to the petitioner to make such application before the Appellate Authority seeking modification of the earlier interim order granted by putting forth the circumstances which have been pleaded in this petition. If the said reason put forth appeals to the Appellate Authority, it would be open for the Appellate Authority to consider the said application and dispose of the same in accordance with law. Based on such interim order that would be passed by the Appellate Authority, the petitioner would have to comply with the same and thereafter proceed for prosecuting the appeal and in the appeal, the Appellate Authority will consider all contentions of the petitioner in accordance with law.
7. At this stage, the learned Counsel for the petitioner also points out that the petitioner herein has made an application before the Appellate Authority to implead the subsequent purchaser and the lessor as party to the appeal. The Appellate Authority will also consider such application, if it has been filed and is on record.
Hence, with the above observation and direction to the Appellate Authority to restore the appeal and consider the same in the manner stated above, the present petition stands disposed of with no order as to costs.
