TaxTMI 
TaxTMI 
2020 (3) TMI 249
X X X X Extracts X X X X
X X X X Extracts X X X X
....cle. 2. Issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to accept 21% of Rs. 63,40,000/- as the correct Motor Vehicle Tax payable by petitioner and cause permanent registration of his vehicle; and 3. Issue any other writ, order, declaration or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. Both sides have been heard in extenso in respect of both these cases on 6.1.2020. A statement dated 6.2.2020 was also then filed on behalf of the 1st respondent in WP(C).No.1190/2020, on the basis of which submissions were made by both sides. Though certain submissions were made on behalf of the respondents on the basis of the letter said to have been issued by the Union Government, referred to in the said statement, the copy of the said letter was not made available for the perusal of this Court, nor for the opposite side. On querying those details, the respondents then sought a short time to make available copy of the said letter. The copy of the letter has been made available for the perusal of this Court today. The said letter is stated to be bearing No.RT11036/82/201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pt by a dealer in, or a manufacturer of, such vehicle, for the purpose of trade and used under the authorization of a trade certificate granted by the registering authority . [Provided further that in respect of a new motor vehicle of any of the classes specified in items 1, 2, 6, 7 (i)(b), 7(i)(c), 10(iii) and 11(i) of the Schedule, there shall be levied, from the date of purchase of the vehicle, one time tax at the rate specified in Annexure I, at the time of first registration of the vehicle and thereafter tax shall be levied at the time of renewal of registration of such vehicle or on the expiry of the life time tax already paid at the rate of specified in the Schedule [as per fifth proviso] to sub-section (1) of section 4" 6. Sec.2(e) of the abovesaid Act deals with the definition clause of purchase value (which contains two provisos thereof) which reads as follows: "2(e) "purchase value" means the value of the vehicle as shown in the purchase invoice and includes value added tax, [goods and services tax and such other taxes as may be levied by the Central and State Government] cess and customs/excise duty chargeable on vehicles: Provided that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 2nd proviso to Sec.2(e) of the abovesaid Act are that, the vehicle in question is either imported from foreign countries or the vehicle has been acquired or obtained otherwise than by way of purchase, and its value is not ascertainable on account of non availability of the invoice, etc, in which case the purchase value shall be the value or price of the vehicles of the same specifications which are already registered or available with the manufacturer or as fixed by the Customs and Central Excise Department for the purpose of levying customs duty and includes excise or customs duty, etc as envisaged in the 2nd proviso to Sec.2(e) of the said Act. 10. In the instant case, it is beyond any dispute that the car has not been imported from a foreign country. So also, there is no dispute that the car has been obtained, otherwise than by purchase and the purchase value is not ascertainable on account of non availability of the invoice, etc as envisaged in the 2nd proviso to Sec.2(e) of the Kerala Motor Vehicle Taxation Act, 1976. Therefore it has to be proceeded on the premise that the purchase value is as per Ext.P-1 purchase invoice as issued by the local dealer in the State of Mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rala was done in a phased manner and the entire porting from State software to centralized software has been completed. In the said software all the information pertaining to the class and category of the vehicles are uploaded and the same is done on the basis of a process called "Homologation". The manufacturer of the vehicle provides information pertaining to the vehicle into the software through this process. That this cannot be altered by the dealer or by the Registering Authority, it is contended. Further that, in the instant case the purchase value of the class of vehicle owned by the petitioner is uploaded by the manufacturer as Rs. 79,99,999/- and in such circumstances, the software automatically calculates the tax, the tax component towards One Time Tax at the rate of 21 % of Rs. 79,99,999/- and this value cannot be altered by the Registering Authority or anybody else. 13. The above aspects are mentioned in para No.6 of the abovesaid statement dated 6.2.2020 filed by the 1st respondent. Further it is contended in para No.7 of the statement that the 1st respondent is unable to allow the petitioner to register his vehicle for any value less than the value shown by the man....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereby attached to be followed for the process of registration for such vehicles imported as per GSR 870(E) dated 13th Sep 2018 by the Vehicle Manufacturers or through their authorized representatives in India or by the organization /citizen for personal use, demonstration, testing, research or scientific use. 5. It is also requested that the registering authorities in the State be directed to ensure that the information on customs duty payment and clearance from Directorate General of Foreign Trade (DGFT) must be checked before permitting registration." 15. Para No.2 of the abovesaid Union Government's letter proceed to state that the system is linked with the homologation system being provided by the Ministry through NIC, wherein the domestic vehicle manufacturer provides the details of each vehicle sold in the country and those details are used by the dealers selling the vehicles to the citizens. Further, the Registering Authority also uses the same details for completing the process of Registration of Vehicles. The system is secured, with only the authenticated users having access to the system for updating, etc. On the basis of the abovesaid letter dated 1.5.201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2(e) of the said Act, by an appropriate legislative provision, including a legal fiction. 17. Further, Sri.P.Thomas Geeverghese, learned counsel appearing for the petitioner in WP(C).No.1190/2020 as well as Sri.E.C.Ahamed Fazil, learned counsel appearing for the petitioner in the connected WP(C).No.32404/2019 would point out that, it is a matter of common knowledge that the price shown by the manufacturer could be at variance with the actual price that may be shown in the purchase invoice by various dealers across the country. In that regard, the petitioners would point out that in a case where the manufacturing unit of the case is situated in a place like Gurgaon, which is close to Delhi, the purchase value as shown by the dealers in Delhi, may not tally with the purchase value that may be shown by dealers in far away places like Arunachal Pradesh, some other States in North-East India, or in a far away place like Kanyakumari and Nagercoil, etc in the State of Tamil Nadu. It is also pointed out that there could be also cases wherein the purchase value of a car of a local dealer in any Southern State could be higher than the value shown by the manufacturer in the web portal, or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore it's purchase value is not known on account of non availability of the invoice, etc the scenario would be as covered in this Court's judgment dated 30.1.2020 in WP(C).No.2399/2020. 20. Further, the 2nd proviso to Sec.2(e) of the said Act would also be a cardinal aspect in the understanding of the abovesaid provisions. In a case where the 2nd limb of the 2nd proviso to Sec.2(e) of the said Act would specifically mandate that, in a case where the car has been obtained otherwise by way of purchase, and the purchase value is not ascertainable on account of non availability of invoice, etc, then the purchase value shall be the value of the price of the vehicle with same specifications, which are already registered or available with the manufacturer, or has been fixed by the Customs and Central Excise Department for the purpose of levying customs duty and includes excise or customs duty levied on the purchase or a motor vehicles, as the case may be, etc. Therefore, the legislature has mandated in its wisdom on account of its legislative policy which led to the abovesaid enactment, that it is only cases as covered in the 1st & 2nd provisos of Sec.2(e) that the figure of pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereafter, the 1st respondent shall forthwith grant permanent registration to the petitioner's vehicle. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. WP(C).No.32404 of 2019 23. The prayers in W.P. (C) No. 32404 of 2019 are as follows: "i. To direct second respondent to assess and accept tax from petitioner in Exhibit P5 application on the basis of the applicable tax rate against purchase value of the vehicle as per Exhibit P1 invoice and grant registration to vehicle of petitioner having Chassis No.WDD2221206L010373. ii. Such other reliefs as this Honourable Court may deem fit and appropriate to grant." 24. This case was heard along with WP(C).No.1190/2020 in which separate judgment has been rendered today. In the instant case, the factual aspects are slightly different, inasmuch as the car that has been purchased by the petitioner is said to be a demo car sold to the petitioner by a dealer in Mumbai, Maharashtra. This Court has specifically queried to the learned Government Pleader whether the respondents want to file any counter affidavit in this case when the matter has been taken up for c....