- (1.) THIS petition has been filed challenging the six notices all dated 28.03.2012 issued by the Commercial Tax Officer, Anti-Evasion Wing, Jaipur in respect of six different assessment years whereby the transfer of vehicles by the petitioner-Bank to third party on authority of the registered owners of the vehicles under bilateral contracts subsequent to taking of possession from the borrowers defaulting on payment of the loan advanced for the purchase of vehicle is sought to be taxed by the Commissioner, Commercial Tax Department, Jaipur as a sale by the petitioner-Bank.
(2.) THE case of the petitioner-Bank is that it neither owns the vehicle, nor claims any depreciation on the vehicles, nor operates or drives the vehicles for any purpose, nor adds any value to the vehicle, nor is in the business of sale and purchase of vehicle, nor has levied and collected VAT on any transaction of transfer of vehicle repossessed by it under hypothecation to it following the default on obligations by the borrower. It is submitted that even the transfer of vehicle to the petitioner-Bank under form 36 of the Central Motor Vehicles Rules, 1986 with reference to Rule 61(2) of the aforesaid Rules read with Section 51(5) of the Motor Vehicles Act, 1988 indicates that the petitioner-Bank is not the owner of the vehicle, nor is understood in law to be so, but is only authorized under law to merely facilitate the sale of repossessed vehicle such that the purchaser comes to have a lawful title thereof and the petitioner-Bank as the financier of the vehicle in issue is able to extract maximum amounts due and outstanding to it. It is submitted that where the price of vehicle obtained exceeds the outstandings, the registered owner of the vehicle is entitled to and in fact allowed to avail the surplus. It is submitted that the aforesaid transaction is being misconstrued by the respondent-Department to bring it within the ambit of the Rajasthan Value Added Tax Act, 2003 (hereinafter 'the Act of 2003') and to usurp jurisdiction otherwise non-existent to visit the petitioner-Bank with huge amounts of liability of a sale not to the petitioner-Bank's account but to that of the registered owner. THE show cause notices all dated 28.03.2012 in the aforesaid circumstances are impugned as without jurisdiction. Mr. R.B. Mathur appearing for the Commercial Tax Department would however submit that the notices all dated 28.03.2012 in respect of six different assessment years are only in the nature of show cause and no tax liability has yet been determined against the petitioner-Bank. It is submitted that the petitioner-Bank ought to file reply to the notices setting out its case whereupon the issue of the petitioner's liability to the tax under the Act of 2003 on the transaction in issue will be determined and assessment made if warranted in law. I have considered the submissions made by the counsel for the parties and perused the writ petition. The objection of Mr. R.B. Mathur with regard to the matter coming up before this Court under Article 226 of the Constitution of India against the show cause notices all dated 28.03.2012 is without force inasmuch as the question raised in the writ petition is with regard to the jurisdiction of the respondent-Department to levy tax on a transaction whereby the financier of a vehicle without being a registered owner of the vehicle merely repossess the vehicle for transfer to the purchaser in accordance with law with the intent of recovering the loan amount advanced against the vehicle in question to the borrower. The Hon'ble Supreme Court in the case of Godrej Sara Lee Ltd. Vs. Assistant Commissioner (AA) and Anr. [(2009) 14 SCC 338] has held that an alternative remedy is not a bar for consideration of a petition under Article 226 of the Constitution of India if the issue in the writ petition is with regard to the lack of jurisdiction of the statutory authority. Consequently, where the notice is alleged to without jurisdiction and ground is not moonshine, a writ court can entertain a petition impugning the show cause notice itself. However, in the present case, I find that the petitioner-Bank also has a remedy apart from challenging by way of a writ petition the jurisdiction of the assessing authority which has issued the show cause notices all dated 28.03.2012. This remedy of the petitioner-Bank lies under Section 36 of the Act of 2003 which empowers the Commissioner to determine all disputed questions of fact inter alia relating to the questions as to whether a person sought to be visited with liability under the Act of 2003 is a dealer or not, as also as to whether the transaction in issue which is sought to be visited with tax under the Act of 2003 is a sale or not and if so at whose instance i.e. whether of the registered owner or the financier of the vehicle. The Commissioner under Section 36 of the Act of 2003 is an authority independent of the assessing authority and by virtue of powers under the Act aforesaid can be expected to exercise his discretion in accordance with law without being swayed by the demands of the Department for levy of tax.
(3.) CONSEQUENTLY, even while not entertaining the writ petition, in my considered opinion, it would be proper for the petitioner-Bank to approach the Commissioner, Commercial Tax Department, Jaipur by moving an application in the prescribed manner under Section 36 of the Act of 2003 for determination of the various disputed questions which arise in the present case. Consequently, I would dispose of this petition directing the petitioner-Bank to move an application under Section 36 of the Act of 2003 before the Commissioner, Commercial Tax Department, Jaipur. In the event, an application is moved within four weeks from today, the Commissioner, Commercial Tax Department, Jaipur shall address and decide the same by a reasoned and speaking order within eight weeks thereafter. It is made clear that in the event the petitioner-Bank moves an application under Section 36 of the Act of 2003 to the Commissioner, Commercial Tax Department, Jaipur within four weeks from today, the recovery proceedings against the petitioner-Bank on the basis of the show cause notices all dated 28.03.2012 shall remain in abeyance till the determination of the questions by the Commissioner. In the event, any adverse order is passed by the Commissioner on the petitioner-Bank's application under Section 36 of the Act of 2003, the petitioner-Bank would be free to approach this Court. ;