TMI Blog2018 (12) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the prescribed period shall pay a penalty at the rate prescribed by the State Government together with arrears of tax. Therefore, for non-payment of the tax within the prescribed period, penalty becomes payable at the rates specified in Rule 4. The vires of Section 6 were challenged in the High Court in earlier proceedings and this challenge was repelled. Further, since Rule 4 uses the expression may , on that basis it was also argued that this rule gives discretion to the Assessing Officer. Under the Bihar Act, as per Section 23, penalties levied for breach of statutory duty for non-payment of tax. While upholding the validity of Section 23 of the Act, insofar as penalty is concerned, the Court had set aside the same on the ground that before imposing the penalty, no show cause notice was issued - Permission was given to the tax authorities to take fresh decision after giving the show cause notice. It is an admitted case that show cause notices were issued and after hearing the appellants, the penalty was imposed. Appeal dismissed. - CIVIL APPEAL NOS. 5299-5304 OF 2003, CIVIL APPEAL NO. 6591 OF 2003, CIVIL APPEAL NOS. 8-12 OF 2004 - - - Dated:- 14-12-2018 - A. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedules. 6. Tax payable by a manufacturer or a dealer A tax at the annual rate specified in Schedule III in lieu of the rates specified in Schedule I shall be paid by a manufacturer or a dealer in motor vehicles in respect of the motor vehicles in his possession in the course of his business as such manufacturer or dealer under the authorisation of trade certificate granted under the Central Motor Vehicles Rules, 1989. 7. Payment of tax xx xx xx (4) In the case of motor vehicles temporarily registered under Section 43 of the Motor Vehicles Act, 1988, the tax for vehicles other than personalised vehicles shall be levied at the rate of 1/12th of the tax payable for the year for such vehicles. In case of extension of the period of temporary registration under the proviso to sub-section (2) of Section 43 tax at the rate of 1/12th payable for the year shall be payable on every extension of temporary registration for period of 30 days or part thereof; Provided that for temporary registration of personalised vehicles the rates of tax will be ₹ 50/- for a motor cycle (including moped, scooter and cycle with attachment for propelling the same by me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpts such manufacturer or dealer from the necessity of registration subject to the condition that they obtain trade certificates from the registering authority. It is because of the reason that in the course of their business as manufacturer or dealer the vehicle would come on the road and would be driven. For this reason, a dealer or a manufacturer of motor vehicle is permitted to obtain trade certificate so that he is exempted from registering the vehicle in his name. The Bihar Act, even in such a case, contemplates levy of tax. This tax is payable under Section 6 at the annual rate specified in Schedule III, as noted above. In case a dealer or a manufacturer is not having trade certificate, in order to drive the motor vehicle during the period it remains with him, he is supposed to get the vehicle registered for a temporary period. This temporary registration is to be done as per the provisions contained in Section 43 of the MV Act. It may be clarified that such temporary registration can be obtained by any person who is the owner of a motor vehicle and is not confined to a dealer or a manufacturer. An owner who gets the vehicle temporarily registered in his name is supposed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition of dealer . As per this provision, as originally stood, a manufacturer was also included in the definition of dealer . However, this provision was amended vide Act 54 of 1994 whereby the Legislature omitted manufacturer from the ambit of the expression dealer . The manufacturer, therefore, no more remained the dealer. The amended definition of dealer which came into effect with effect from November 14, 1994, is as under: 2. Definitions.-In this Act, unless the context otherwise requires,- (8) dealer includes a person who is engaged- (a) [* * *] (b) in building bodies for attachment to chassis; or (c) in the repair of motor vehicles; or (d) in the business of hypothecation, leasing or hire-purchase of motor vehicle; 11) Thus, under the Central Act, prior to its amendment in November, 1994, motor vehicles would require registration in all events, save and except those which were in possession of dealers . In the latter event, the vehicles could be temporarily kept under a trade certificate, which, under the rules, provides extremely limited mobility. In November, 1994, manufacturers were taken out of this exception by amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After the aforesaid judgment, the District Transport Office, Jamshedpur again confirmed the demand of tax under Section 6 of the Act vide his order dated July 05, 1999 in the case of the appellant/TELCO. This order was confirmed by the Appellate Authority at Ranchi on December 18, 1999 as well as by Revisional Authority by his order dated April 20, 2000. Writ petitions were filed challenging this order in the High Court which have been dismissed vide impugned judgment dated September 24, 2002. In appeal Nos. 5299-5304 of 2003 validity of the judgment is questioned. Civil Appeal Nos. 5299-5304 of 2003 arise out of this judgment. 17) Civil Appeal Nos. 8-12 of 2004 are filed by a dealer who has paid the tax under Section 6 of the Act as well, however, for delayed payment, penalty and interest are imposed which were challenged by the said appellants in the High Court and the High Court has dismissed the case of the appellants vide its judgment dated July 22, 2003 following its judgment in TELCO case. 18) It is in this conspectus, this Court is to first determine the question of liability of tax under Section 6 of the Bihar Act and in the event this tax is upheld, question of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Entry 35 of the Concurrent List. Also, whereas the Preamble to 1988 Acts states that the Act has been enacted to consolidate and amend the law relating to Motor Vehicles, the Preamble to 1994 Act states that this Act has been made with a view to regulate the imposition and levy of tax on Motor Vehicles in the State of Bihar (as it was at the relevant time). Both the Act, therefore, deal with two different fields of legislation and the areas of their operation are also different, having been enacted by two different classes of Legislatures, one in terms of the power exercisable and vested under clause (2) and the other in terms of the power vested and exercisable under clause (3) of Article 246 of the Constitution. Therefore, at the risk of repetition, we have no hesitation in saying that any change or alteration in one Act cannot be said to have any effect upon the other. 22) We also agree with the respondents that the tax was in respect of motor vehicles in possession of the manufacturer in the course of his business as a manufacturer, or in possession of the dealer in the course of his business as a dealer under the authorization of trade certificate granted under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possessed by the manufacturer or dealer. We, therefore, are of the opinion that the appellants are liable to pay tax under Section 6 of the Bihar Act. May be, Section 6 is not happily worded. But the intent is to convey that tax will not be payable as per Schedule I which is payable under Section 5 but in place thereof it would be payable as per Schedule III. 25) Insofar as imposition of penalty is concerned, it is as per the provisions of Section 23 of the Act which mentions that for non-payment of tax under the Act, penalty can be imposed. The appellants have referred to the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa (1969) 2 SCC 627 which describes the nature of penalty as under: 8. Under the Act penalty may be imposed for failure to register as a dealer - Section 9(1) read with Section 25(1)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due date for tax payment. For payment of differential taxes under the provision of Section 8, the due date shall be within seven days from the date of alteration in the vehicle or the change in its use. (2) Where the tax for any period in respect of a vehicle has not been paid as required under the provisions of sub-rule (1) and continues to remain unpaid thereafter, the taxing officer may impose penalty in respect of such vehicles at the rate specified in the table below:- TABLE Period Amount of penalty (i) If paid within fifteen days from the due date of payment. Nil. This will be treated as a grace period. (ii) If paid after fifteen days but within 30 days of the due date of payment. Penalty to be charged at the rate of 25 per cent, of the tax. (iii) If paid after 30 days of but within 60 days of the due date of payment.. Penalty to be charged at the rate 50 per cent, of the taxes due (iv) If paid after 60 days but within 90 days of due date of tax payment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
