1. By means of the present writ petition, petitioners are challenging the various order of the Assistant Regional Transport Officer/Taxation Officer
(A), Aligarh dated 11.10.2008, by which the claim of the petitioners for surrender of the vehicles have been rejected and road tax and additional
tax have been demanded.
2. It appears that the petitioners have surrendered their vehicles and furnished Form F as required under Rule 22(1) of Uttar Pradesh Motor
Vehicles Taxation Rules, 1998 and also surrendered the various documents. As per the claim of the respondent that on the inspection dated
05.09.2008 the vehicles were not found at the place declared by the petitioners in Form F and, therefore, the claim of the petitioners for the
surrender has been rejected and the demand has been raised.
3. Learned Standing Counsel has raised the preliminary objection that against the impugned orders, petitioners have alternative remedy by way of
appeal u/s 18 of the Uttar Pradesh Motor Vehicles Taxation Act, 1997 (hereinafter referred to as ""Act"") and, therefore, the writ petition is not
maintainable.
4. Learned Counsel for the petitioners submitted that the allegation of the respondent is absolutely wrong. He submitted that in reply filed against
the notice, petitioners have categorically stated that no inspection was made on 05.09.2008, therefore, the rejection of the claim is wholly
unjustified.
5. He submitted that Apex Court in the case of State of Gujarat and Others Vs. Kaushikbhai K. Patel and Another, has held that mere
apprehension of clandestine use of a vehicle cannot be a ground for imposing tax on ombibuses which are not put on road or kept away fro use.
6. He further submitted that Division Bench of this Court in the case of Daya Shanker Yadav v. State of Uttar Pradesh and Ors. reported in 2008
(2) ALJ 571 has held that if any order passed by the Taxation Officer u/s 12 of the Act with respect to such refund is not to the satisfaction of such
person, he may file appeal u/s 18 of the Act and, therefore, against the impugned order no appeal lies u/s 18 of the Act.
7. u/s 18 of the Act appeal lies against the order passed u/s 12 of the Act. In the present case, the impugned orders have been passed under the
provision of Section 12(2) of the Act, which reads as follows:
12. Non-use of vehicle and refund of tax.
1....
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, n 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 remain 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 libale to the penalty payable under Sub-section (3) of Section 9.
8. In the present case, according to the Taxation Officer the vehicles were not found at the place declared in Form F and, therefore, he inferred
that the vehicles were in operation and during the relevant period the claim of the surrender has been rejected, resulting the demand of tax and
penalty Therefore, the present impugned orders are passed under the proviso of Section 12(2) of the Act.
9. Before the Division Bench of this Court in the case of Daya Shanker Yadav v. State of Uttar Pradesh and Ors. (Supra), the dispute was relating
to refund. It seems neither of the parties raised about proviso to Section 12(2) of the Act possibly on the pretext that only a question of refund u/s
12(1) of the Act is applicable therein. Therefore, the aforesaid decision of the Division Bench of this Court can not be the authority on the subject
involved in the present case.
10. In the circumstances, we are of the view that the against the impugned orders, appeal lies u/s 18 of the Act. Moreover, in the decision of the
Apex Court in the case of State of Gujatat and Ors. v. Kaushikbhai K. Patel and Anr. (Supra), Apex Court considered the appeal from the
Special Civil Application No. 10356 of 1966 and not against the order passed in the writ jurisdiction. The case of the petitioners is that no
inspection was made on 05.09.2008 while the case of the Revenue is that on the inspection dated 05.09.2008 vehicles were not found at the place
declared in Form F. It may be mentioned that in Form F, the person who surrenders the vehicle gives a declaration of a place where the vehicle is
to be parked and not to remove the vehicle from the place without prior permission of the Taxation Officer except in case of any untoward
occurrence thereof. These questions are disputed questions of fact, which can not be examined by this Court in the writ jurisdiction and can more
appropriately be examined by the appellate court. In the circumstances, we declined to interfere in the matter.
11. In the result, writ petition fails and is accordingly, dismissed on the ground of alternative remedy. However, in case the petitioners tile appeal, it
can be heard by the appellate authority expeditiously.