M. B. SHARMA, J. - (1.) AN important question arises for consideration in this writ petition and it is whether a motor vehicle which has a registration certifi-cate but the vehicle is not covered by the fitness certificate, for the said period any tax under Section 4 of the Rajasthan Motor Vehicles Taxation Act, 1951 (for short, the Taxation Act) can be imposed and levied?
(2.) TO appreciate the above question it will be proper to refer to some facts in brief. The registered owner of the bus No. RJO 9891 is of Munshi Madanlal Pacherwal, He purchased the aforesaid bus. The said Madanlal Pacherwal had taken a loan from the Rajasthan Financial Corporation and the above vehicle was hypothecated with the Rajasthan Financial Corporation. Madanla! failed to pay the instalments due and therefore the possession of the vehicle was taken by the Rajasthan Financial Corporation and the bus was put in auction by the Rajasthan Financial Corporation and the same was purchased by the petitioner Pankaj Kumar. According to the terms and conditions of the agreement made by the petitioner with the Rajasthan Financial Corporation, the petitioner agreed to pay all the dues of tax to the transport department on the said vehicle. The taxation officer Kota vide his assessment order dated May 11, 1988, (Annr. 2) assessed the liability of the road tax for the period from April 1985 to June, 1988 at Rs. 15,379/- and for the same period also imposed penalty of Rs. 9812/ Thus, the total assessment was made for Rs. 25, 191/- and the assessee the petitioner was called upon to make the payment and a demand notice was issued Because under the agreement entered into between the petitioner and the Rajasthan Financial Corporation the liabilty of the tax was on the petitioner, the petitioner filed an appeal against the aforesaid order of the Taxation Officer, Kota and the appellate authority (Addl. Transport Commissioner Jaipur) under his order dated August 6,1988, partly allowed the appeal and held that the assessment order for assessment of tax as well as penalty for the period from February 12, 1987 to March 20, 1988 was not in accordance with law because during that period the vehicle remained in possession of the Rajasthan Financial Corporation. He remanded the case to the Taxation Officer with the direction that he should deduct the period from February 12, 1987 to March 20, 1988 from the period April 1985 to June, 1988 and make a fresh assessment order alongwith the penalty, if any. Before the appellate authority (Additional Transport Commissioner, respondent No. 2), a two-fold contention was raised on behalf of the petitioner that for the period the vehicle remained with the Rajasthan Financial Corporation, no tax liability arose because the vehicle was neither used nor could have been used during that period and that even for the remaining period out of the total period of assessment, from April 1985 to June, 1988 no liabilty of tax arose under the Taxation Act and the Rules, i. e. Rajasthan Motor Vehicle Taxation Rules, 1951 (for short, the Rules ). Though the vehicle was covered with registration certificate but there was no fitness certificate and therefore the vehicle cannot be said to have been kept for use within the State of Rajasthan. The contention as stated earlier prevailed with the learned appellate authority but the second contention did not prevail and as stated earlier the case was reminded to the Taxation Officer for fresh decision with the directions as contained in the appellate order. The contention of the learned counsel for the petitioner is that under Section 22 (1) of the Motor Vehicles Act, 1939 (for short, the MV Act) no person can dnve any-motor vehicle and no owner of a motor vehicle can cause or permit the vehicle to be driven in any public place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with chapter III and a certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries the registration mark displayed in the prescribed manner. According to learned counsel under Section 38 (1) of the MV Act, a transport vehicle shall not be deemed to be validly registered for the purpose of Section 22, unless it carries a certificate of fitness in form H as set forth in the first schedule by the prescribed authority to the effect that the vehicle complies for the time being with all the requirements of Chapter V and the rules made thereunder. Therefore, according to the learned counsel in the absence of fitness certificate for the period for which the assessment order has been made the vehicle cannot be said to be validly registered and there is no tax liability in respect of the vehicle for the aforesaid period. Learned counsel further contends that the very fact that there was no fitness certificate for the vehicle in question for the period for which assessment order has been made is sufficient for the satisfaction of the Taxation Officer that the vehicle has remained out of use and therefore the assessment order could not have been made. In support of his contention, learned counsel for the petitioner has referred to the case of Puran Singh V. State of Uttar Pradesh (1 ). In that case the permit was suspended under Section 60 of the MV Act for a period of three months allegedly on the ground that it was not covered by a fitness certificate. The court said that the effect of Section 22 read with Sections 36 and 41 is that a motor vehicle shall not be deemed to be duly registered in accordance with that section unless it has a certificate of fitness also granted under Section 38. The absence of fitness certificate, current at the moment has the result of rending the vehicle as one not registered in accordance with Section 22. The court further said that the absence of a fitness certificate thus affects the validity of registration under Sec. 22 which in those circumstances is rendered in-valid. It becomes non-existent and in view of the provision in Section 22, the vehicle cannot be driven or caused to be driven in any public place or in any other place for the purpose of carrying of passengers or the goods. We will in the later part of this order dilate this point but suffice it to say for the present that while examining the case as to whether any road tax is payable under the provisions of the Act, the provisions of the Act itself are to be looked into and not the provisions of the Motor Vehicles Act. The Supreme Court in the case of State of Karnataka vs. V. K. Gopalakrishna Shenoy (2) in para 10 said that the very terms of Section 38 limit the deeming effect caused by the absence of a Certificate of Fitness to the rights conferred under Section 22 pursue to the registration of vehicle. Therefore, there is no scope for extending the deeming provisions in Section 38 to Section 3 (1) and the Explanation there to of the Taxation Act. The Court further said that the operative force of the deeming provision contained in Section 38 being restricted to Section 22 of the MV act and can have no effect while examining a taxing statute. We will therefore examine the relevant provisions of the Taxation Act and the Rules in order to come to the conclusion whether as contended by the learned counsel for the petitioner that in the absence of fitness certificate any liability for payment of tax under Section 4 of the Taxation Act arises or not? Section 4 of the Taxation Act is charging Section and under its sub-section (1) save as otherwise provided by the Act or by rules made thereunder or by any other law for the time being in force, no motor vehicle shall be used in any public place or kept for use in the State of Rajasthan unless the owner thereof has paid in respect of it a tax at the rate fixed by the State Government. Sub-section (2) of Section 4 as it stands after substitution thereof by Act No. 20 of 1982, vide Raj. Gazett Extra-ordinnary part 4 (ka) dated September 30,, 1982 page 44-45, had undergone change twice. Originally it was- "an owner who keeps a motor vehicle of which the certificate of fitness and the certificate of registration are current, shall for the purpose of this, Act be presumed to keep such vehicle for use. " But the aforesaid sub-section (2) of Section 4 had undergone a change in 1972 and it was- "except during any period for which the Taxation Officer has in the prescribed manner certified that a motor vehicle was not used or kept for use in the State the owner, or any person having possession or control of a motor vehicle of which the certificate of registration and certificate of fitnese are current, shall for the purpose of this Act, be deemed to use or keep such vehicle for use in the State" As already stated earlier sub-section (2) has been substituted by the Act No. 20 of 1982 and as it now stands, sub-section (2) reads as under: " (2) Tax shall be payble under this section by owner of the Motor Vehicle except for the period during which the owner surrenders the certificate of registration to the Taxation Officer in the prescribed manner or satisfies the Taxation Officer that the vehicle has remained out of use of such reasons as may be prescribed; Provided that the period of such surrender or the period of such non-use as the case may be, shall be for a period not less than three months. Provided further that if the vehicle is found plying after the certificate of registration has been surrendered the owner shall pay the tax for the entire period which the certificate of registration remained surrendered. " It will therefore be clear from the reading of sub-section (2) of Section 4 of the Taxation Act that there is marked difference in it as it stood prior to September 30, 1982 and as it not stand and there is no deeming provision to the effect that a motor vehicle which is covered by a registration certificate but has no fitness certificate shall for the purpose of the Taxation Act be persumed to be kept for use. No tax shall be payble if the owner surrenders the registration certificate to the Taxation Officer in the prescribed manner for a period of not less than three months or satisfies the Taxtion Officer that the vehicle has ramined out of use for such reasons as may be prescribed and merely because the vehicle is not covered by the fitness certificate, though there is registration certificate, there can be no presumption that the vehicle was not kept for use within the Sate. Under Section 5 of the Taxation Act, the tax payable under Section 4 shall be payable in advance on or before the 15th day of January in each year by the owner of a motor vehicle. Under the provision to section 5 (1) such owner shall have the option of paying the tax in four equal instalments payable on or before the 15th day of January, April, July and October. Section 5 also empowers the Taxation Officer to levy penalty in case the tax is not paid in accordance with aforesaid sub-section (1) of Section 5. Section 7 of the Act deals with refund of tax and under its sub-section (I) when any person who has paid the tax, proves to the satisfaction of the Taxation Officer that the motor vehicle in respect of which tax or instalment has been paid, has not been used for a continuous period of not less than three months, since the tax or instalment was last paid, he shall be entitled to the refund of an amount equal to l/12th of the annual rate of tax paidein respect of such vehicle for each complete month if the period for which such tax or instalment has been paid. Under rule 4 of the Rules, the Regional Transport Authority appointed under rule 3 (k) of the Rules shall be the Taxation Officer. Rule 4 provides that the tax payble under the Taxation Act shall be payable in advance to the Taxation Officer by the owner of the motor vehicles, or the manufacturer of or dealer in motor vehicles, as the case may be, in the manner explained in rule 4 itself. Under rule 25 (i) a refund of tax paid shall be granted as mentioned in Section 7 of the Taxation Act, if it is proved to the satisfaction of the Taxation Officer that the motor vehicle in respect of which as refund is claimed remained unused for a continuous period of not less than three months since the tax or instalment of tax was last paid when the owner of a motor vehicle intends to with-draw the vehicle for use from a period of not less than three months. The registration certificate and the token in respect of motor vehicle should be surrendered to the Taxation Officer together with a declaration in part I of form MTG at the time when the vehicle is withdrawn from use. Under sub-rule (2) of rule 25 the cancellation of the registration of a motor vehicle under the Rajasthan Motor Vehicles Rules or its alternation as contemplated in rule 13 (1) will also entitle the owner of the motor vehicle to claim a refund for every complete calender month in respect of which the tax has been paid and which is unexplained on the date of cancellation. Rule 25 B deals with reasons for non-use and it provides that the Taxation Officer shall satisfy himseif and certify that the vehicle was not used in the state under any of the circumstances mentioned in clauses (i) to (vi) which provides (i) that the certificate of Registration was suspended by the competent authority, (ii) that the motor vehicle was restrained from plying by the competent court or authority, (iii) that the motor vehicle was involved in , an accident and a report to this effect was made to the police and that because of accident it remained out of use atleast for a period of three months, (iv) that the motor vehicle was attached for the recovery of tax under the Rajasthan Land Revenue Act by the competent authority or attached under the warrant of attachment issued by that competent authority, or court and that during the period of attachment the vehicle did not remain in his possession, (v) that the vehicle has been taken out of the State and certificate has been produced that the vehicle has paid tax in another State and (vi) any other reasons due to which it was impossible for the owner to ply the vehicle. Rule 26 provides method of claiming refund and payment thereof, and under its sub-rule (i) (a) any person claiming a refund of tax shall present to the Taxation Officer to whom the tax was originally paid an application in part I of form MT within two months of the expiry of the period in respect of which the refund is to be claimed accompanied by the receipt in original or a certified copy thereof the tax paid on the motor vehicle. No claim for refund shall be entertained if not made within the above mentioned period. The application shall specify as to when a refund is claimed for the reason that a vehicle remained unused for a continuous period of not less than three months, the applicant should produce proof to support the statement. A reading of Sections 4,5, and 7 of the Taxation Act alongwith rules 4, 25, 25 B and 26 of the Rules will show that the scheme of the Act and the Rules is that no vehicle can be used or kept for use within the State of Rajasthan unless the tax payable under the Taxation Act is paid in advance. Under Sec. 4 (2) of the Act as it now stands it cannot be said that unless the vehicle is covered with the current certificate of fitness, it cannot be said to have been kept for use and thus in all cases except for the period during which registration certificate is surrendered to the Taxation Officer or the owner satisfies the Taxation Officer that the vehicle has remained out of use for such reasons as may be prescribed, and the reasons have been prescribed under rule 25 B, it is the liability of the owner to pay the tax under Section 4 of the Taxation Act as may be prescribed from time to time by the State Government but in no case exceeding that prescribed in the schedule. In the aforesaid case of K. Gopal krishna Shenoy (supra) the court was considering the change in Section 3 of the Mysore Motor Vehicle Taxation Act, 1957 of which sub-section (1) of Section 3 and the explanation was as under: " (1) A tax at the rates specified in Part A of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of Mysore; Provided that in the case of motor vehicles kept by a dealer in or manufacturer of such vehicles for the purposes of trade, the tax shall only be levied and paid by such dealer or manufacturer on vehicles permitted to be used on roads in the manner prescribed by rules made under the Motor Vehicles Act, 1939. Explanation - A motor vehicle of which the certificate of registration is current shall for the purpose of this Act, be deemed to be a vehicle suitable for use on roads. " An argument was advanced that a valid certificate of registration can only be said to be in existence in case there was current fitness certificate. The argument was repelled and the court said that the Explanation to Section 3 (1) contains a deeming provision and its effect is that as long as the certificate of registration of a motor vehicle is current, it must be deemed to be a vehicle suitable for use on the roads. Learned counsel for the petitioner contends that the provisions of sub-section (2) of Section 4 of the Taxation Act and the Rules are different and therefore, the aforesaid ratio in the case of Gopal Krishana Shenoy (supra) will not apply to the case of the tax liability under the Taxation Act and the Rules and the absence of a fitness certificate alone is sufficient for the satisfaction of the Taxation Officer that the vehicle has remained out of use for a period it was not covered by the fitness certificate. We find no substance in this submission. As already stated earlier only in the contingencies namely surrender of the registration certificate by the owner and the satisfaction of the Taxation Officer that the vehicle has remained out of use, the tax liability will not be incurred otherwise in all the circumstances the liability of the tax is there. Under rule 25-B the reason for non-use of the vehicle have been prescribed and it is not prescribed therein that mere absence of a fitness certificate shall result the non-using of the vehicle for a period it was not covered by the said fitness. certificate and it is the satisfaction of the Taxation Officer himself and the owner has to satisfy the Taxation Officer that the vehicle was not used in the State for any reasons or reasons due to which it was impossible for the owner to ply the vehicle. We are therefore of the opinion that mere absence of fitness certificate does not absolve the owner of a motor vehicle from the payment of the tax under the Taxation Act, and he has to satisfy the Taxation Officer that due to the reasons that vehicle was not having current fitness certificate it was impossible for him to ply the vehicle. There can be no presumption by the mere absence of current fitness certificate that the owner did not ply the vehicle. In conclusion, we find no merit in the writ petition. It is hereby dismissed with no order as to costs. .;