Decided on April 12,1972



- (1.) The petitioner has been carrying on motor transport business plying his bus APK 8244 as a contract carriage for transporting tourist parties from place to place on temporary permits obtained from the Regional Transport Officer, Vijayawada - the respondent herein as and when necessary. He has been paying the prescribed tax of Rs. 1020.00 in respect of his contract carriage every quarter. He paid the same amount for the quarter starting with 1-4-70 and ending with 30/06/1970. He obtained a temporary permit from the respondent valid from 13-4-1970 to 16-4-1970 for carrying a tourist party from Vijayawada to Bhadrachalam and back. The petitioner took in the tourist party to fulfill the contract.
(2.) The Motor Vehicles Inspector, Flying Squad, Guntur served a check report on the driver of the petitioner on 14-4-70 on the road to Kondapalli on Tiruvur to the effect that the vehicle was carrying passengers and seized the bus for being kept in his custody. The petitioner immediately on hearing from his driver about the alleged occurrence approached the respondent for release of the bus and he was informed that the vehicle would be released only on payment of a sum of Rs. 4590.00 representing the difference in tax between the amount in respect of the stage carriage and a contract carriage. The petitioner paid the demanded amount under protest on 15-4-70 and obtained release of the vehicle. On 17-7-1970, he submitted a memorandum to the respondent that he should be permitted to have refund of the amount paid. The respondent issued proceedings Re. No. 11600/B3/70 dated 29-8-1970 on 17-9-1970 to the effect that the petitioner is liable to pay the aforesaid sum of Rs. 4590.00 as difference of proportionate tax due as on a stage carriage for the quarter ending with 30-6-1970 and that the sum already paid was adjusted towards that demand. On 17-12-1970 the petitioner presented an application to the respondent requesting refund of proportionate tax in respect of the two months of May and June, 1970 as per the provisions of G.O. No 2420 since the vehicle was used only as a contract carriage and not as a stage carriage during the said two months of May and June, 1970 comprised in the quarter from 1-4-1970 to 30-6-1970 for which the entire tax, for a stage carriage was collected under pressure. The respondent by his Memo. No 11600/B3/70 dated 23-2-1970 informed the petitioner that there was no provision under the Taxation Act to consider his refund application as the difference of tax was paid on detection of non-payment of tax on 14-4-1970. He thus rejected the application for refund. The petitioner has filed this writ petition seeking an order from this Court directing the refund of a sum of Rs. 2754.00- representing the 3/5ths amount of Rs. 4590.00 paid as tax for the quarter ending with 30-6-1970.
(3.) The contention of the petitioner is that he was plying his bus as a contract carriage and has also paid an advance tax for contract carriage in accordance with the provisions of Section 4 (1) of the Motor Vehicles Taxation Act (hereinafter referred to as the Act.) On the 14th of April 1970 the Motor vehicles Inspector found that the contract carriage was being used as a stage carriage and therefore the difference between the tax leviable on a stage carriage and a contract carriage was collected from the petitioner. He paid the tax for the whole of the quarter ending with 30th of June, 1970 and he did not ply the vehicle as stage carriage in the months of May and June, 1970 and he is entitled to claim refund in accordance with the notification issued under the said section. His further contention is that explanation III to the said notification, on which reliance is placed by the respondent, does not apply to his case. The respondent has gone wrong incoming to the conclusion that the petitioner is not entitled to refund because non-payment of tax was detected and therefore he is within Explanation III to the notification. His contention is that Explanation III is not applicable as it may be said that the non-payment of tax was detected only if he had not paid the tax due on the vehicle as contract carriage. The expression "non-payment has been detected", does not apply to the case of the nature before me. He therefore contends that he is entitled to refund as per the notification.;

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