Shivaraj V. Patil, J. - (1.) In this appeal the judgment and order dated 23-4-1998 made by the High Court of Gujarat at Ahmedabad in Special Civil Application No. 10356 of 1996 are impugned. The respondents herein filed the said Special Civil Application in the High Court for setting aside the notice dated 29-3-1996 demanding payment of composite tax and penalty and for declaration that Section 3-A(5) of the Bombay Motor Vehicles Tax Act, 1958 as amended by the Bombay Motor Vehicles Tax (Gujarat Amendment) Act, 1992, is ultra vires being violative of Articles 14 and 19 of the Constitution of India.
(2.) The respondent No. 1 is the owner of omnibus bearing registration No. GRQ 8403. The said vehicle had not been used or kept for use during the period from 1-7-1995 to 31-3-1996. He intimated the non-user of the said omnibus to the Motor Vehicle Inspector. He claimed refund of the tax for the said period. His claim for refund was not allowed on the ground that the omnibus had been kept in non-use for a period exceeding three months and he failed to satisfy that such non-use was for the reasons beyond his control. Consequently, the appellant issued demand notice dated 29-3-1996 demanding payment of composite tax of Rs. 14,000/- and penalty of Rs. 3,500/- from the respondent No. 1. Under these circumstances, the respondents filed the aforementioned Special Civil Application.
(3.) Section 3 of Bombay Motor Vehicles Tax Act, 1958 (for short the "Act") authori-ses levy and collection of tax on motor vehicles used or kept for use in the State. As per sub-section (2) of Section 3, a motor vehicle shall be deemed to have been used or kept for use in the State during the currency of certificate of registration except during the period for which the taxation authority has certified that the vehicle was not used or kept for use. Section 3-A of the Act provides for levy of tax on omnibuses which are used or kept for use in the State as contract carriages. The Act was amended by Gujarat State by the Bombay Motor Vehicles Tax (Gujarat Amendment) Act, 1992. Sub-section (5) of Section 3-A was substituted. The said substituted sub-section (5) of Section 3-A to the extent it is relevant reads as follows:- "5(a) Where the registered owner or any person having possession or control of a designated omnibus who has paid tax under this section proves to the satisfaction of the taxation authority that the designated omnibus in respect of which a tax has been paid has not been used or kept for use for a continuous period of not less than one month, he shall be entitled to the refund of an amount equal to 1/12th of the annual rate of tax paid in respect of such omnibus for each complete month of the period for which the tax has been paid so however that, except as otherwise provided in clause (b) the total amount of a refund in a year shall not exceed - (i) ********** (ii) ********** (b) Where a registered owner or a person having possession or control of a designated omnibus who has paid tax under this section proves to the satisfaction of the State Government or such officer not below the rank of the Director of Transport, Gujarat State, as may be notification in the Official Gazette be authorised in this behalf by the State Government that the designated omnibus in respect of which the tax has been paid has for reasons beyond the control of such owner or person not been used or kept for the use for a continuous period of not less one month but exceeding three months in a year, he shall be entitled to the refund of an amount equal 1/12th of the annual rate of the tax paid in respect of such omnibus for each complete month of the period of which the tax has been paid. (Emphasis supplied);