- (1.) Having heard Mr. Moloy Kumar Basu with Mr. Arabinda Sen for the writ petitioner and Mr. Pranab Kumar Dutt for the State respondents and considering the materials on record, a short point of law has arisen in this case inasmuch as the petitioner has challenged the order dated 1-1-91 and the order as communicated under Memo dated 17-12-90, copies whereof are Annexures "E" and "F" to the writ petition upon declaration that the provisions laid down in S.16(4) of the West Bengal Motor Vehicles Tax Act, 1979, as ultra vires. A notice has since been served upon the learned Advocate General to appear.
(2.) Upon perusal of the materials on record this Court finds that the Vehicles bearing registration No.WBR 2400 (Bus) has been seized on 26-9-90 for non-payment of tax and additional tax under S.3 of the West Bengal Motor Vehicle Tax Act, 1979, and under S.4 of the West Bengal Motor Vehicle Additional Tax Act, 1989, and along with relating offences without permit, without registration certificate and certificate of fitness etc. The vehicle was liable to pay tax five times of the actual due tax and it was claimed that in terms of S.16(4) of the said Act, the petitioner should pay the total dues of Rs. 47,495.00. It transpires that the petitioner has paid Rs. 18,997.95 paise in terms of the order of the Taxing Officer at Barrackpore and he has made payment according to S.11 of the said Act. The Order dated 17-12-90 made by the Taxing Officer, Malda, was challenged before the Appellate Authority under S.9 of the Act and the District Magistrate/Appellate Authority dismissed the appeal finding that under S.16(4) of the Act, there is no discretion in the matter and the order of the Taxing Officer, Malda, was affirmed. Being aggrieved the petitioner has come to this Court.
(3.) Looking at S.11 of the Act, it transpires that if the tax payable under S.3 has not been paid during the prescribed period, the person liable to pay such tax shall- (a) in the case of a transport vehicle pay penalty- (i) of one quarter of the tax if payment is made-within 30 days after the expiry of the prescribed period; (ii) of one-half of the tax if payment is made after 30 days but within sixty days after the expiry of the prescribed period; (iii) equal to the amount of tax if payment is made after 60 (sixty) days; (b) in case of other vehicles, pay penalty; (i) of one quarter of the annual tax if payment is made within 30 (thirty) days after expiry of the prescribed period; (ii) one-half of the annual tax if payment is made after 30 days but within 60 days after the expiry of the prescribed period; (iii) equal to the amount of annual tax if payment is made after sixty days. ;