Rohit Nayani v. The State of Telangana and 2 Others
Court: High Court for State of Telangana
Bench: A.ABHISHEK REDDY
Judgment date:
Case summary
High Court for State of Telangana judgment dated 2020-12-18. Rohit Nayani v. The State of Telangana and 2 Others. Read the judgment and case details on...
Judgment text
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF DECEIVBER TWO THOUSAND AND TWENTY PRESENT THE HON'BLE SRIJUSTICE A. ABHISHEK REDDY WRIT PETITION NO: 13626 OF 2020 Betwee n: Rohit Nayani, S/o. Nayani Haranath, Aged about 35 years, Occ. Private Service, Rlo. # 124, Flat No-102, Surya Tejas Apartments, Kavuri Hills, Phase-2, Hyderabad-033. ... PETITIONER AND 1. The State of Telangana, Rep. by its Principal Secretary, Transport Department, Secretariat, Hyderabad 2. The Transport Commissioner, Opp. Eenadu, Raj Bhavan Quarters Colony, Somajiguda, Hyderabad 3. The Regional Transport Authority, Central Zone, Opp. Eenadu, Raj Bhavan euarters colony, Somajiguda, Hyderabad ... RE. '.
NDENTS Petition under Article 226 o'f lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in levying the lax of 14o/o in respect of the two wheeler (T50988TR0470) Kawasaki Ninja 1000 BSIV lnstead of 9% as wholly illegal, arbitrary and contrary to law. lA NO: 1 OF 2020 Petition under Section 151 CPC praying that in the circumstances stated in the affidavjt filed in support of the petition, the High Court may be pleased to direct the Respondents to register the two wheeler T509BBTR0470 Kawasaki Ninja 1000 BSIV by levying the tax @ 9% on the invoice value of Rs. 9,98,0001 pending d isposal of Writ Petition. Counsel for the Petitioner: SRl. l. V.
RADHAKRISHNA MURTHY Counsel for the Respondents: GP FOR TRANSPORT The Court at the stage of admission made the following: ORDER THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY W. P. No. 13626 OF 2O2O ORDER: The present Writ Petition is filed questioning the action of the respondents in lerying the tax @ ). 4%o in respect of the two wheeler I. E. Kawasaki Ninja 1000 BSIV bearing No. TS09- BB-TR-0470 as against the tax 9ok as i11ega1, arbitrary and @ contrary to law, the present writ petition is filed. 2. Heard the learned counsel for the petitioner and the learned Government Pleader for Transport. With their consent, the Writ Petition is disposed of at the stage of admrssion. 3. The case of the petitioner is that initially he purchased one two wheeler bearing No. TS09-EK-0195 and sold the same to one Katamreddy Nireeshkumar Reddy on 15. 07. 2017 and the said sale was intimated to the respondents also. Subsequently, the petitioner has purchased a ltew t\^ro wheeler i. e.
Kawasaki Ninja i000 BSIV on 31. 07. 2017 for an amount of Rs. 9,98,000/- for the petitioner has also paid Rs. 89,820/- towards 9o/o tax on the purchase cost and taken online slot for registration. However, on the date of registration, the registration aulhorities refused registration and directed the petitioner ro pay additional tax of Rs. 49,900/- by calculating the tax @ 14% on the purchase cost of Rs. 9,98,OO0/-. It i.. ; further srated that on 02. tl. 2OlZ ) AAI(,. J WP N'o. 13626 of 2020 and 19. 03. 2020, the petitioner made a representation to the authorities duly enclosing the relevant documents, however, no orders are passed thereon till date. Hence, left with no other alternative, the present writ petition is fited. 4 . The respondent No. 3 filed a counter affidavit stating that the petitioner purchased the subject two wheeler vehicle on 31. 07 . 2017 for Rs.
9,98,000/- and the same was temporarily registered by the dealer and was allotted temporary registration number TS 09 BB TR 0470 and the same is valid from 31. 07. 2017 to 29. O8. 2017. The petitioner purchased the 1"t vehicle and paid tax thereon on 04. 08. 2015, which was permanently registered on 17. 12. 2015. Thereafter, on 37. O7. 2077, petitioner purchased the 2"a vehicle paying the tax instead of 14% and @ 9ok thereafter on 03. 08. 2017 the application made for transfer of the 1"t vehicle was approved. Thus, at the time of purchase of the 2"d vehicle, the petitioner was holding the 1"t vehicle in his name. Therefore, the petitioner is liable to pay the tax 14% but not 9Vo as contended. It is further @) stated that contrary to the provision or Section 39 of the Motor Vehicles Act, 1988, the petitroner 1S plying the vehicle sin ce 29. 08. 2017 and therefore he is liable to pay penalty u,ith difference tax as per amended Motor Vehicle Taxation Act under Act 11 of 2010.
It is further stated that three years after the purchase of the 2"a vehicle, the petitioner has Wl' No. 13626 o1 2020 submitted a representation on 19. 03. 2O2O seeking exemption of additional tax, which is not permissible under the Act or the Rules. The petitioner without paying the additional tax demanded by the respondents since the year 2O),7 has filed the present writ petition after a lapse of more than three years. Therefore, prayed for dismissal of the writ petition. 5. Reply has been filed by the petitioner denying the allegations made in the counter. A specific stand has been taken by the petitioner that he has applied for registration for the first time and got the date as 01. 09. 2017 and therefore, the question of approaching the R. T. A. before that date does not arise at all. That, as on the date of applying for registration, there was no vehicle in his name and therefore, the respondents cannot state that the vehicle that is sought to be registered is a second vehicie.
That, once a temporary registration for two wheeler is given, the person is entitled to p1y the vehicle for a period of one month and it was only subsequently when the petitioner approached the authorities on 01. 09. 2017 for permanent registration, that, the same was not registered on the ground that the registration of the vehicle that is sought to be made is a second one and therefore, he is liable to pay 74ok, but as a matter of fact, the first vehicle was sold on 15. 07. 2017 and registered in the name of the purchaser on 03. 08. 2017 itself. Even though, the petitioner has also taken a stand that as per Schedule III of 4 AAR.. I WP No. 13626 ol'2020 Ordinance No. 2 of 2010, dated 02. O2. 2010 of the government of Andhra Pradesh, Hyderabad, (11 9o/o of life tax to be payable on a two wheeler which si priced above 10 1akhs, under Ordinance No. 2 of 2010, dated 02. O2.
2OlO, and (2) I4o/o of lile tax is levied in case when the owner of the 2 wheeler wants to register his 2"d two wheeler which is priced 10 lakhs above, under Ordinance No. 2 of 2010, dated 02. 02. 20 10. 6. But, the same is not applicabie to the facts of the present case as the said Ordinance being Ordinance No. 5 of 20 10 has been repealed by Act 11 of 2010. 7. Heard Sri I. V. Radhakrishna Murthy, learned Counsel for the petitioner, and the learned Government Pleader for Transport appearing for respondents. B. To appreciate the contentions made by the parties, it is relevant to extract some of the provisions of the Andhra Pradesh Motor Vehicles Taxation Act as well as the Rules as it stood in the original Act 3. Levy of tax on motor vehicles: - (1) The Government may, by notification, from time to time, direct that a tax shall be levied on every motor vehicle used or kept for use, in a public place in the State.
(2) The notification issued under sub-section (1) shall specify the class of motor vehicles on which, the rates for the periods at which, and the date from which, the tax shall be levied: Provided that the rates of tax shall not exceed the maximum specified in column (2) of the First Schedule in respect of the classes of motor vehicles fitted with I WP No.
13626 of 202{) pneumatic tyres specified in the corresponding entry in column ( 1) thereof; and one and a half times the said maximum in respect of such classes of motor vehicles as are fitted with non-pneumatic tyres: Provided further that in the case of motor cycles (with or without attachment), invalid carriages, motor cars, jeeps and other non-transport vehicles not exceeding 2286 kgs in unladen weight and Omni Buses with a seating capacity of (8) or more in all but not exceeding (10) in all, Motor Cabs except those Motor Cabs that are in use and within the cost of rupees three lakhs and fifty thousand or less and also registered originally in the State, the tax shall be levied at the rates specified in the Third Schedule.
Provided also that in respect of chassis of a motor vehicle passing through this State, from a manufacturer to a dealer under a temporary certificate of registration for a period not exceeding seven days, the rate of tax shall be one-twentieth of the tax payable for quarter. Provided also that in the case of two to four wheeler motor vehicles coming under non-transport category, not exceeding 2286 kgs. , in unladen weight and Omni Buses with seating capacity ol (8) eight persons in all but not exceeding (10) ten persons in all owned by institutions, organizations, companies or societies and in case of second and subsequent two to four wheeler motor vehicles coming under non-transport category not exceeding 2286 kgs. , in unladen r. r,eight and Omni Buse s with seating capacity of (8) eight persons in all br-rt not exceeding (10) ten persons in all, owned by an individual, the tax shall be levied at the rates specified in the Sixth Schedule.
Provided also that in respect of motor vehicles operated with Battery compressed Natural / Gas / Solar Energz, no tax shall be levied for a period of five years from the date to be notified. AAR.. I WP No. Ii616 oi 2020 9. The said section 3(2) of the Act is amended vide Act No. 1 1 of 2010, which reads as follows: "ln the Andhra Pradesh Motor Vehicles Taxation Act, 1963 (hereinafter referred to as the principal Act), in Section 3, in sub-section (2) - (i) for the second proviso, the following proviso shall be substituted, namely:- "Provided further that in the case of motor cycles with or without attachment, invalid carriages, the tax shall be levled at the rates specified in the Third Schedule," (ii) for the third proviso the following proviso shall be substituted namely:- "Provided also that in the case of Construction Equipment vehicles including Road Rollers, the rate of tax shall be levied at the rates specified in the Fourth Schedule".
(iii) for the fourth proviso, the following provisos shall be substituted namely:- "Provided also that in the case of three or four four r. l,heeler motor vehicles including Motor Cars under non-transport category, omni buses upto a seating capacity of (10) ten persons in all, new Motor Cabs and the Motor Cabs of other States that are entering into the rolls of this State by way of change of address or transfer of ownership, the tax shall be levied at the rates specified in the Sixth Schedule: Provided also that Non-Transport Vehicles meant for carrying persons, owned by Companies/ Institutions/ Societies/ Organisations upto a seating capacity of (10) ten in all and second or more personalized vehicles upto a seating capacity of (10) ten in all owned by an individual, the tax shall be levied at the rates specified in the Seventh Schedule. " WP No. 13626 ot 2020 10.
A reading of the above makes it abundantly clear that as per the second proviso to Section 3(2) of the Act provides that the ta-x applicable to motor cycles u,ith or u,tthout attachment, invalid carriages, shall be levied at the rates prescribed in the Third Schedule. In the Principal Act, for the Third Schedule the following new Schedule shall be substituted. namelv:- THE THIRD SCHEDULE (See second Proviso to Sub-section (2) of Section-31 sl. Period/ Class Motor Cycles including Tri cycle, Invalid No. of Vehicle Motor Schooters and Cycles Carriage \\,ith or \\'ithout attachment Vehicles not Vehicles Exceeding 60 CC exceeding 60CC 1 2 3 4 ) 1 At the time of 97o of the cost 97o of the cost Rs. 901/- Registration of New vehicles 1 1.
But, the learned Government Pleader is relying on the fourth proviso to buttress his contention that the vehicle is 1iable to be taxed at14%o, which reads as under: "Provided also that Non-Transport Vehicles meant for carrying persons, owned by Companies/ I nstitutions/ Societies/ Organizations up to a seating capacity of ( I O) ten in all and second or more personalized vehicles upto a seating capacity of (10) ten in all owned by an individual, the tax shall be levied at the rates specified in the Seventh Schedule. " (Emphasis added) 12. In the Principal Act, after the Sixth Schedule, so amended the following new Schedule sha1l be added, namely:- 8 AAI\! J wP No. 13626 o12020 THE SEVENTH SCHEDULE (See Fifth Proviso to Sr-rb-Section (2) ol Section 3) 1 2 3 sl. Period / Class of vehicle Non-Transport vehicles No.
meant for carrying persons, owned by Companies/lnstitutions/ Societies / Organizations upto a seating capacity of ( 10) ten in all and second or more personalized vehicles upto a seating capacity of (10) ten in aJI owned by an individual 1 At the time of registration I4o/o of the cost of the Of new vehicles vehicle. 13. The bone of contention now boils down to as to what will be applicable date of registration for the purpose of ler'ying the appropriate tax, whether the date of purchase ol the second vehicle should be taken as the date of reckoning for the purpose of applying the Seventh Schedule or u. 'hether the date of actual registration of the vehicle should be taken AS a criteria for ler,ying the applicable Schedule i. e. , Third Schedule. In the Schedules which are enumerated in the Act, it is clearly mentioned th,al "at the time of registration of neu uehicles". 14.
Admittedly, in this case, the first vehicle of the petitioner was already transferred and registered in the name of the purchaser on 03. 08. 2017 and by the time, the petitioner approached the R. T. A. authorities i. e. , 01. 09. 2017, the first vehicle was no longer in his name and therefore, the contention of the learned Government Pleader that the I I ,\A R. J \\'l' No ll(,26 o1 2020 Seventh Schedule is applicable to the facts of the present case is not a valid one. The learned Government Pleader tried to impress upon this Court that the date of purchase i. e. , the date on which the temporary iicence was generated should be taken as the date of registration of the second vehicle and as on that date, the first vehicle u,as stil1 in the name of the petitioner, therefore, the petitioner is 1iable to pay tax l4o/o. @ 15. The said contention is not a 1egal1y valid ground as the Section 4$) of the Act itself provides that " notu..
rithstanding angthing in Section 3 or sub-section (1), the gouernment maA, bg notification time to time, direct that a temporary licence from a peiod not exceeding for thirtA dags at a time mag be issued in respect of a motor uehicle of ang class on paAment of such tax, and subject to such conditions as maA be specified in such notification". 16. Thus, there is clearly a distinction between the temporary licence and the permanent registration. When the Act/ Schedule states "at the time of registration of ner. r' vehicles", the same has to be interpreted to mean at the time the vehicle is phvsically presented belore the R. T. A. Office for the purpose of registration. Temporary licence is generated on-line by the Dealer and it is only a licence to drive the vehicle for a period of 30 days from the date of delivery by the dealer, by no stretch of imagination can it be contended that l0 WP No.
l 1626 o12020 the date on which the temporary licence is generated by the dealer should be taken as the date of registration. 17. In view of the above made discussion, the writ petition is allor,r''ed and the olficial respondents are directed to register the vehicle in the name of the petitioner bv collecting the ta-x as per the Third Schedule on1y, subject to the petitioner fulfilling the other formalities. The miscellaneous petitions pending, if any, shall stand closed. There sha-ll be no order as to costs. SD/. B. SATYAVATH ASSISTANT R //TRUE COPY// SECTION OFFICER To, l. ThePrincipalsecretary,TransportDepartment,stateofTelanganaSecretariat, Hvderabad 2. iil;i;;;ort Commissioner, Opp. Eenadu, Raj Bhavan Quarters Colonv' Somaliguda, HYderabad s. i[e f,etional t'ransport Authority, Central Zone, Opp' Eenadu' Raj Bhavan Ouarte16 Colony, Somajiouda, Hyderabad a. dn6'CCIJ sn i. V. naoirit<risrrnS Murthv, Advocate toPl'lgl d. ifi cC.
to cp tot Transport, High Court for the State of Telangana at Hyderabad. [OUT] 6. Two CD CoPies CHR HIGH COURT DATED:1811212020 sT4 1 H e ( o z o 30DEC2m ORDER D W. P. No. 13626 of 2020 ALLOWING THE WRIT PETITION AT THE STAGE OF ADMISSION WITHOUT COSTS Y 1o)tr -_. _
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