Tata Engineering And Locomotive ... vs The State Of Jharkhand
2021 Latest Caselaw 354 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           W.P. (T) No. 6842 of 2019

         Tata Engineering and Locomotive Company Ltd., Tata Motors
         Ltd. Previously known as (Tata Engineering and Locomotive
         Company Ltd.) Through Rajesh Kumar Das, Aged about 52 years
         Son of Late P.N.Das, having its registered office at 24 HomiMody
         Street, Fort Mumbai and its work at Jamshedpur, P.O. and P.S.-
         Telco, District- Singbhum East through its authorised signatory
         DGM Legal Services, Rajesh Kumar Das son of Late P.N. Das,
         Resident of C/15, Vivekanand Road, P.O.- Baridih, P.S.- Sidhgora,
         Town- Jamshedpur, District- East Singhbhum, Jharkhand.
                                                 ...     ...     Petitioner
                                Versus
         1. The State of Jharkhand, through the Chief Secretary, Govt. of
            Jharkhand, Project Building, Dhurwa, Ranchi.
         2. The Secretary, Transport Department, Govt. of Jharkhand,
            Project Building, Dhurwa, Ranchi.
         3. Commissioner, Transport Department, Govt. of Jharkhand,
            Project Building, Dhurwa, Ranchi.
         4. District Transport Officer, Singhbhum East, having its office at
            Bistupur, P.O. & P.S. Bistupur, District Singhbhum (East),
            Jamshedpur, Jharkhand                ...     ...     Respondents
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

For the Petitioner : Mr. Vijoy Pratap Singh, Sr. Advocate Mr. Arun Kumar, Advocate Mr. A. K. Das, Advocate Ms. Rashmi Kumar, Advocate For the respondents : Mr. Rajiv Ranjan, A.G.

: Mr. A. K. Yadav, G.A.-I

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11/25.01.2021 Heard Mr. Vijoy Pratap Singh, learned Senior counsel appearing on behalf of the petitioner.

2. Heard learned Advocate General on behalf of the respondents along with Mr. A. K. Yadav, G.A.-I.

3. Impugned herein is the demand notice bearing No. 3965 dated 27.09.2019 (Annexure-5) issued by respondent No.-4, District Transport Officer, Jamshedpur, whereby petitioner has been asked to pay an amount of Rs. 44,33,43,873/-

towards government dues within one week from its receipt.

Petitioner has also assailed the Audit Memo No. 3 dated 13.09.2019 (Annexure-6) issued by the Office of the Principal Accountant General (Audit), Jharkhand, whereunder the tax dues from the company along with penalty and interest have been computed for the period 2002-03 to 2018-19 after dismissal of the Civil Appeal Nos. 5299-5304 of 2003 vide judgment dated 14.12.2018 (Annexure-3).

4. On the part of the petitioner, the following questions of law have been raised at para-3 of the writ petition:-

(i) Whether the impugned Demand Notice dated 27.09.2019 (Annexure-5) and Audit Memo (Annexure-

6) are liable to be quashed as being wholly illegal, without jurisdiction and contrary to the ratio of the decision dated 14.12.2018 rendered by the Hon'ble Supreme Court in Civil Appeal No. 5299-5304 of 2003 in the case of the petitioner?

(ii) Whether the petitioner has been held liable to pay tax under Section 6 of the Bihar Act vide the judgment of the Apex Court as above?

(iii) Whether the liability of the petitioner to pay tax under Section 6 is to be decided keeping into consideration the legal principles and reasoning contained in the judgment dated 14.12.2018 along with the ratio or by mere reference to the inadvertent conclusion contained in the decision of the Hon'ble Supreme Court?

(iv) Whether the Respondent Authorities have misunderstood and misinterpreted the ratio of the aforesaid judgment of the Hon'ble Supreme Court dated 14.12.2018?

(v) Whether Respondent No. 2 could have acted on the basis of the impugned Audit Memo, without reference

to the reasoning and ratio of the Hon'ble Supreme Court judgment 14.12.2018, which held that the petitioner is not liable to pay tax under Section 6 of the Bihar Act.

5. According to the petitioner, it is engaged in the business of manufacturing Chassis and having its manufacturing Unit at Jamshedpur, within the state of Jharkhand. Petitioner has referred to the previous history of litigation relating to the liability of tax under the Central Motor Vehicles Act, 1989 read with Central Motor Vehicles Rules, 1989 and the provisions of Bihar Motor Vehicles Taxation Act, 1994. The petitioner herein is the manufacturer. The levy of tax under Section 6 of the Bihar Act was challenged by the writ petitioner before the Patna High Court wherein the vires of the Act of Bihar Act under Section 6 was also challenged. The challenged was repelled by the High Court vide its judgment dated 3rd July, 1998 reported in (1998) 3 PLJR 457. That judgment attained finality as Special Leave Petition against it was dismissed by the Apex Court. After the aforesaid judgment, the District Transport Officer, Jamshedpur confirmed the demand of tax under Section 6 of the Act vide its order dated 05.07.1999 in the case of the writ petitioner/Telco/Tata Motor. This order was confirmed by the appellate authority on 18.12.1999 as well as by the revisional authority vide its order dated 20.04.2000. Writ petitions were filed challenging this order in the High Court which were dismissed vide judgment dated 24.09.2002 by a full Bench of this Court reported in (2003) 1 JLJR 601. The petitioner took the matter before the Apex Court in Civil Appeal No. 5299-5304 of 2003 on which the judgment at Annexure-3 dated 14.12.2018 was passed.

6. An interim order was passed by the Apex Court on 01.08.2003 (Annexure-2) in the following terms :-

"It is stated by learned counsel appearing on behalf of the appellant that his client has already paid the disputed amounts demanded for the year 1994-95 to 2001-2002 under protest.

Learned counsel appearing on behalf of the respondents states that his client does not accept this as he does not have appropriate instructions.

We, however, make it clear that we are not granting any interim relief to the appellant in respect of the period 1994- 95 to 2001-2002 at this stage except with regard to the demand for penalty which has already been stayed and which stay which continue until the disposal the appeal. As far as the future realizations are concerned, the appellant shall pay the amounts either under Sec.5 or under Sec.6 whichever rate is higher to the respondents subject to the appellant giving an undertaking in writing that in the event the appellant is found liable to pay both the amount i.e. Under Sec.5 and under Section 6, it will pay the difference to the respondents together with interest calculated at the rate of 12% per annum."

7. The Apex Court vide its final judgment (Annexure-3) dated 14th December, 2018 answered the common question of law which had arisen in all these appeals pertaining to levy of tax by the respondent No.-1 State (State of Jharkhand) under Section 6 of the Bihar Motor Vehicles Taxation Act, 1994 ('Bihar Act' for short) on the chassis of the motor vehicles manufactured by the appellants during the period these chassis are in their "possession" i.e. before they are delivered to the dealers and/or to the purchasers of the said vehicles. The Apex Court from paragraphs-2 to 17 of the judgment discussed the provisions of Sections 5, 6 and 7 (4) of the Bihar Act which envisaged three kinds of taxes. Sections 5, 6 and 7(4) of the Bihar Act are quoted hereunder: -

"5. Levy of tax - (1) Subject to other provisions of this Act, on and from the date of commencement of this Act, every owner of a registered motor vehicle shall pay tax on such vehicle at the rate specified in Schedule I.

(2) Subject to other provisions of this Act, on and from the date of commencement of this Act, every owner of a registered motor vehicle shall pay Additional Motor Vehicles Tax on such vehicle at the rate specified in Schedule II.

(3) The State Government may, by notification from time to time, increase the rate of tax specified in the Schedules:

Provided that no such increase shall, during any year, exceed fifty percent of the rate of taxes prescribed in the Schedules.

6. Tax payable by a manufacturer or a dealer - A tax at the annual rate specified in Schedule III in lieu of the rates specified in Schedule I shall be paid by a manufacturer or a dealer in motor vehicles in respect of the motor vehicles in his possession in the course of his business as such manufacturer or dealer under the authorisation of trade certificate granted under the Central Motor Vehicles Rules, 1989.

7. Payment of tax -

xx xx xx

(4) In the case of motor vehicles temporarily registered under Section 43 of the Motor Vehicles Act, 1988, the tax for vehicles other than personalised vehicles shall be levied at the rate of 1/12th of the tax payable for the year for such vehicles. In case of extension of the period of temporary registration under the proviso to sub-section (2) of Section 43 tax at the rate of 1/12th payable for the year shall be payable on every extension of temporary registration for period of 30 days or part thereof,

Provided that for temporary registration of personalised vehicles the rates of tax will be Rs.50/- for a motor cycle (including moped, scooter and cycle with attachment for propelling the same by mechanical power) and Rs. 100/- for a motor car."

8. It also discussed the provisions of Sections 39 and 43 of the Motor Vehicles Act, 1988 and the amendment in the definition of 'dealer' under Section 2(8) of the Motor Vehicles Act, 1988 vide Act No. 54 of 1994, whereby the Legislature omitted 'manufacturer' from the ambit of the expression 'dealer'. The manufacturer, therefore, no more remained the dealer. This amendment came into effect from 14.11.1994. Prior to this amendment under the Central Act, motor vehicles would require registration in all events, save and except those which were in possession of "dealers".

At para-11 it was observed that in the latter event i.e. after amendment, the vehicles could be temporarily kept under a trade certificate, which, under the rules, provides extremely limited mobility. In November, 1994, manufacturers were taken out of this exception by amendment in the definition of dealers. Bihar Motor Vehicles Rules 1992 (Bihar Rules) were amended as empowering the manufacturers themselves to act as authorities, who could grant temporary registration. Thus, under the revised scheme post November, 1994, it was only a dealer (other than a manufacturer) who could keep a vehicle for a limited period of time under a trade certificate. Manufacturers, therefore, could have to temporarily register the vehicle under Section 43 of the Central Act. Upon its purchase, the customer would then register the vehicle finally under Section 39 of the Central Act. The State of Bihar enacted Bihar Motor Vehicles Taxation Act in April, 1994 at a time when the manufacturers also could continue in possession of the Tariff heading vehicles under a trade certificate.

9. After the amendment of 1994, the facility of trade certificate to the manufacturers stood withdrawn. The manufacturer undoubtedly could possess a vehicle, which is in his factory as long as it is not used in any place contrary to Section 39 of the Bihar Act. The only manner in which, a manufacturer could use a vehicle is the manner indicated under Section 39 of the Act without obtaining a registration. Prior to the said amendment of the Central Act, a Division Bench of the Patna High Court had taken a view that vehicles, which were in use, would either require a registration certificate, permanent or temporary or would require a trade certificate. A manufacturer who is required to obtain trade certificate, but did not do so, would not escape the net of

tax by being the beneficiary of his own wrong.

10. At para-16 of the judgment, the Apex Court after referring to the Legislative changes as indicated above further found it pertinent to mention that after the amendment in November, 1994, when the Assessing Officer sought to levy tax under Section 6 of the Bihar Act, the appellants i.e. the petitioners herein challenged the action by filing writ petitions before the Patna High Court. After the challenge was repelled vide its judgment dated 03.07.1998 and attained finality, the District Transport Officer had confirmed the demand of tax under Section 6 of the Act vide its order dated 05.07.1999 in the case of the appellants/writ petitioner herein which further got confirmed up to the revisional authority vide order dated April 20, 2000. The writ petitions preferred by the petitioner against it stood dismissed vide judgment dated 24.09.2002 which gave rise to the instant civil appeals on the behest of the appellants/petitioners herein. The Apex Court in this conspectus of facts and legal position posed for determination, the question of liability of tax under Section 6 of the Bihar Act and in the event, the tax is upheld, question of penalty and interest to be determined therein. It was also observed vide para-7 of the judgment that all these appellants in the category of manufacturers or dealers of the motor vehicles have paid taxes under Section 7(4) of the Bihar Act. Likewise, in respect of those vehicles retained and used by the appellants for their own purpose and not sold, the appellants have discharged their tax liability under Section 5 of the Bihar Act as well. At para-24 of the judgment it was held as under:

"........... In contrast, Section 6 is the stage before that as it is on the event of the vehicle being possessed by the manufacturer or dealer. We, therefore, are of the opinion that the appellants are liable to pay tax under Section 6 of

the Bihar Act. May be, Section 6 is not happily worded. But the intent is to convey that tax will not be payable as per Schedule I which is payable under Section 5 but in place thereof it would be payable as per Schedule III."

11. The Apex Court also considered the issue of imposition of penalty as per the provisions of Section 23 of the Act and the judgment of Hindustan Steel Limited vs. State of Orissa reported in 1969 2 SCC 627 cited by the appellants. The appellants had contended that their action was bonafide, inasmuch as, when the notices were received for the first time for payment of tax under Section 6 of the Act, the same were challenged albeit the validity of Section 6 was upheld by the High Court. Thereafter, the tax was paid by the appellants though challenged again in the present round of litigation before the Apex Court. On this ground, it was argued that the action of the appellants was bonafide. The Hon'ble Apex Court dealt with the provisions of Section 23 and Rule 4 of the Taxation Rules at para 27 and 28 quoted hereunder: -

"Para-27- In order to test this argument, we shall have to consider the provision under which penalty can be imposed. The provision in the Act is Section 23 and Rule 4 of the Taxation Rules provides for the rates of penalty. Section 23 reads as under :

"Liability to pay penalty for non-payment of tax in time.- If the tax payable in respect of a vehicle other than personalised vehicle has not been paid during prescribed period, the person liable to pay such tax shall pay together with the arrears of tax, a penalty at the rates prescribed by the State Government."

28. Rule 4, likewise, is to the following effect:

"4. Due date of payment and penalty for non-payment of taxes in time.-

(1) For vehicles other than personalised vehicles the due date of payment of tax shall be the date of expiry of the period for which the tax has been last paid. In cases where no such tax had previously been paid, the date of acquisition of the vehicle or the date when such tax is imposed by law shall be due date for tax payment. For

payment of differential taxes under the provision of Section 8, the due shall be within seven days from the date of alteration in the vehicle or the change in its use.

(2) Where the tax for any period in respect of a vehicle has not been paid as required under the provisions of sub-rule (1) and continues to remain unpaid thereafter, the taxing officer may impose penalty in respect of such vehicles at the rate specified in the table below:-

TABLE Period Amount of penalty

(i) If paid within fifteen days Nil. This will be treated as a from the due date of payment. grace period.

(ii) If paid after fifteen days but Penalty to be charged at the within 30 days of the due date rate of 25 per cent, of the tax. of payment.

    (iii) If paid after 30 days but       Penalty to be charged at the
    within 60 days of the due date        rate of 50 per cent, of the taxes
    of payment.                           due.
    (iv) If paid after 60 days but        Penalty to be charged equal to
    within 90 days of due date of         the taxes due.
    tax payment.
    (v) If paid beyond 90 days after      Penalty to be charged will be
    the due date.                         twice the taxes due.

In the concluding part of the judgment at para-29 to 31 the Hon'ble Supreme Court held as under: -

"29) Section, 23, in no uncertain terms, lays down that any person who does not pay the tax during the prescribed period shall pay a penalty at the rate prescribed by the State Government together with arrears of tax. Therefore, for non- payment of the tax within the prescribed period, penalty becomes payable at the rates specified in Rule 4. The vires of Section 6 were challenged in the High Court in earlier proceedings and this challenge was repelled. Further, since Rule 4 uses the expression 'may', on that basis it was also argued that this rule gives discretion to the Assessing Officer. That argument was also repelled in Telco case. This position of law has attained finality. At this stage, it would be useful to refer of the judgment in State of U.P. & Ors. V. Sukhpal Singh Bal wherein this Court held:

"15. ......A penalty may be the subject-matter of a breach of statutory duty or it may be the subject-matter of a complaint. In ordinary parlance, the proceedings may cover penalties for avoidance of civil liabilities which do not constitute offences against the State. This distinction is responsible for any enactment intended to protect public revenue..."

30) It is clear that under the Bihar Act, as per Section 23, penalties levied for breach of statutory duty for non-payment of tax.

31) In view of the aforesaid specific legal provisions, judgment in the case of Hindustan Steel Ltd. referred to by the appellants will not be applicable in the instant case. It is also to be borne in mind that while upholding the validity of Section 23 of the Act in Telco, insofar as penalty is concerned, the Court had set aside the same on the ground that before imposing the penalty, no show cause notice was issued. Permission was given to the tax authorities to take fresh decision after giving the show cause notice. It is an admitted case that show cause notices were issued and after hearing the applicants, the penalty was imposed. Taking into consideration all these aspects, the High Court in the impugned judgment dated July 22, 2003 in the case of M/s. R.K. Automobiles & Ors. (Civil Appeal Nos. 8-12 of 2004) has replied the challenge against imposition of penalty. We agree with the aforesaid conclusion."

From the findings and the ratio of decisions of the Apex Court discussed above it is clear that liability to pay tax of the appellant Tata Motors/petitioner herein under Section 6 of the Bihar Act was upheld.

12. As per the further case of the petitioner pleaded herein, petitioner had deposited the amount of Rs. 61,67,125/- in terms of the interim order. After the disposal of Civil Appeal Nos. 5299-5304 of 2003 on 14.12.2018, it deposited the balance amount of Rs. 10,65,79,075/- i.e. the balance original total tax liability out of Rs. 11,27,46,200/- as per statement made at para-17 of its supplementary affidavit. Vide Audit objection dated 13.09.2019 (Annexure-6) it was pointed out that the amount of trade tax due from the company was neither assessed nor demanded by the Taxing Officer after the Apex Court's judgment in the instant Civil Appeal Nos. 5299-5304 of 2003 and the government was deprived of revenue amounting to Rs. 4433.54 lakhs as detailed thereunder, in the form of a chart relating to the period 2002-03 to 2018-19 up to January, 2019. The chart is extracted hereinbelow: -

Period No. of Amt of Penalty @ Interest @ Trade Tax Paid Gross vehicles trade tax 200% 12% + Penalty demand /chassis + Interest manufac tured 2002-03 1315331 112746200 222261582 114513216 449520998 6167125 443353873 to 2018- 19 (Upto Jan 19)

13. Based on this audit objection, the impugned demand notice (Annexure-5) was issued by the District Transport Officer, Jamshedpur bearing letter No. 3965 dated 27.09.2019 asking the petitioner to pay the government dues amounting to Rs. 44,33,43,873/- within a week of receipt of this demand notice. In the background of these facts as borne out from the records and the legal position as culled out from the judgment dated 14.12.2018 of the Apex Court in the instant Civil Appeal No. 5299-5304 of 2003. Learned senior counsel Mr. V. P. Singh for the petitioner has urged inter alia as under:

(a) that the impugned demand notice has been issued without giving any opportunity of being heard to the petitioner and is in violation of principles of natural justice and the earlier directions as also the procedure laid down by this Hon'ble High Court in its judgment dated 03.07.1998 (Annexure-1).

(b) The impugned demand notice is not valid also because it is not on the basis of self determination by the authority under the Act authorized to make such demand, but rather based on report of some other authority

(c) The impugned demand based on Audit Memo dated

13.09.2019 is not in conformity with the order passed by the Hon'ble Supreme Court on 01.08.2003, inasmuch as, the Hon'ble Supreme Court had ordered that:

(i) That petitioner is required to pay the respondents the amounts either under Section 5 or under Section 6 whichever rate is higher.

(ii) That the payment only under one section was to be made on giving the undertaking by the petitioner that in the event it is found that payments have to be made under both sections i.e. under Section 5 and under Section 6 difference has to be paid with interest calculated @ 12 percent per annum.

(iii) Thus, the interest has to be calculated only on difference and not on the whole amount.

(iv) Since by the interim order dated 01.08.2003, passed by the Apex Court the petitioner was permitted to make payments only under one provision of the State Taxation Act, the respondents should not have imposed penalty on the petitioner.

(v) Petitioner has already paid tax at higher rate, therefore, the audit report is contrary to the order of the Hon'ble Supreme Court.

(vi) The chart of calculation by auditor prima facie shows the wrong method of calculation, inasmuch as that they should have reduced the payment already made by the petitioner from the tax liability before charging penalty and interest thereupon.

Learned senior counsel for the petitioner submits that the impugned demand is therefore fit to be set-aside.

14. Learned Advocate General has straightaway referred to the statement of the petitioner at para-30 of the writ petition and questioned the intent and bonafides of the petitioner in asserting that the impugned demand could not have been

raised under Section 6 of the Act merely because the civil appeals were dismissed by the Hon'ble Supreme Court, albeit inadvertently. It is pointed out that the petitioner in the present litigation in the third round has sought to question an issue relating to its liability under Section 6 of the Act once again despite the matter having laid to rest on both previous occasions up to the Supreme Court. Referring to the interim order dated 01.08.2003 (Annexure-2) passed by the Apex Court in the instant civil appeals, it is submitted that the petitioner despite being conscious of its liability to pay the higher rate of tax under Section 6 of the Act chose to deposit an amount of Rs. 61,67,125/- only during the pendency of the civil appeals. Thereafter, in the supplementary affidavit at para-17 it has accepted that its original tax liability was Rs. 11,27,46,200/-. Only after dismissal of the civil appeals on 14.12.2018, it has deposited the balance amount of Rs. 10,65,79,075 by way of a demand draft on 07.01.2020. It is submitted that the determination of tax after remand by the District Transport Officer, Jamshedpur under Section 6 of the Act vide its order dated 05.07.1999 as upheld by the appellate authority and the revisional authority and up to the High Court was under challenge in the instant Civil Appeal Nos. 5299-5304 of 2003. The liability to pay tax under Section 6 of the Act stood upheld twice up to the Apex Court. In the last round of litigation, the Apex Court also upheld the imposition of penalty, repelling the contention of the appellant that its actions were bonafide.

The Apex Court also held that the judgment in the case of Hindustan Steel Limited (supra) referred to by the appellant will not be applicable in the instant case. It also referred to the provision under Section 23 of the Act and Rule 4 of the Taxation Rules, whereunder a structured

method of computation of penalty as per the days of default has been prescribed in the table given under Rule 4. It is further submitted that the Audit rightly pointed out that the amount of trade tax for the period 2002-03 to 2018-19 to the tune of Rs. 11,27,46,200/- + penalty @ 200 to the tune of Rs. 22,22,61,582 and interest @ 12% to the tune of Rs. 11,45,13,216/- (in terms of the interim order dated 01.08.2003) totaling Rs. 44,95,20,998/- were outstanding against the petitioner. After deduction of the amount already paid by the petitioner i.e. Rs. 61,67,125/- the gross demand was to the tune of Rs. 44,33,53,873/-. It is submitted that the entire arguments of the petitioner questioning its liability under Section 6 of the Act as raised at para-30 for the outstanding trade tax for the period in question taking into account the interim order dated 01.08.2003 is not based on any valid grounds.

15. It is submitted on behalf of the State that the petitioner has straightaway approached this Court against the issuance of demand notice on a plea of wrong computation of penalty and interest and deduction of the amount of Rs. 61,67,125/- earlier paid it by virtue of the interim order. The liability of penalty on account of default in payment being automatic in terms of Section 23 read with Rule 4 and the rates prescribed given in table thereunder is not straightaway open to challenge in the writ petition. Petitioner had earlier invoked the alternative remedy of appeal and revision before approaching the High Court and thereafter being aggrieved with the dismissal of the writ petition by the Full Bench of this Court in the judgment reported in (2003) 1 JLJR 601 approached the Hon'ble Supreme Court in the instant civil appeals. There is no reason why the writ petition be entertained by passing the alternative remedy. Therefore, it is fit to be dismissed.

16. Learned senior counsel for the petitioner has reiterated his submission in reply and referred to the observations of the Apex Court in the concluding paragraph-31 of the judgment dated 14.12.2018 and submitted that no show cause notice has been issued before imposing the penalty under the impugned demand as was the requirement of law in terms of para-36 of the decision rendered by the learned Division Bench of the Patna High Court in the case of the same petitioner (Annexure-1) reported in 1998 3 PLJR 457. As such, the penalty is not sustainable in law. Moreover, the computation of the demand, if any, ought to have been made after deducting the amount of Rs. 61,67,125/- paid by the petitioner and interest in terms of the Hon'ble Supreme Court judgment should have been computed thereafter. Therefore, interference is justified by this Court under Article 226 of the Constitution of India.

17. We have considered the submission of learned counsel for the parties in the entire gamut of facts, provisions of law and the decisions rendered by the Patna High Court in the case of the same petitioner (Annexure-1) 1998 3 PLJR 457, the Full Bench judgment of this Court reported in (2003) 1 JLJR 601; and also the decision of the Apex Court dated 14.12.2018 reported in 2019 2 JCR 213 (SC). We may in the background of these facts taken note above, at the outset, observe that the liability of the petitioner to pay tax under Section 6 of the Motor Vehicles Taxation Act is no longer in dispute or res integra by virtue of the decision rendered by the Apex Court dated 14.12.2018 of which copious reference has been made in the forgoing paragraphs of this order.

We may also observe that in terms of the interim order dated 01.08.2003 passed by the Apex Court in the instant civil appeals, the Apex Court refused to grant any interim relief to the appellant in respect of the period 1994-95 to

2001-02 at that stage except with regard to demand for penalty which had already been stayed and which stay were to continue till the disposal of the appeal. However, so far as future realizations were concerned, it was ordained that the appellant i.e. petitioner herein shall pay the amounts either under Section 5 or under Section 6 whichever rate is higher to the respondents subject to the appellant giving an undertaking in writing that in the event the appellant is found liable to pay both the amount under Section 5 and under Section 6, it will pay the difference to the respondents together with interest calculated @ 12% per annum. At para- 7 of the judgment, the Apex Court also took note that all those appellants fell in the category of manufacturers or dealers of the motor vehicles. They had paid taxes under Section 7(4) of the Bihar Act. Likewise, in respect of those vehicles retained and used by the appellants for their own purpose and not sold, the appellants had discharged their tax liability under Section 5 of the Bihar Act as well. Apparently, the tax liability under Section 6 of the Bihar Act remained undischarged in full on the part of the appellants despite the interim order dated 01.08.2003. Petitioner at para-17 of its supplementary affidavit has also categorically stated that it had an original tax liability of Rs. 11,27,46,200/- from which an amount of Rs. 61,67,125/- was deposited by it. It is further stated that in order to show bonafide on its part, after the disposal of the Civil Appeals vide judgment dated 14.12.2018, it has deposited the balance amount of Rs. 10,65,79,075/- by a demand draft dated 07.01.2020.

18. In this background facts and decisions of the Apex Court, the Audit took note of the outstanding tax liability of the petitioner for the period 2002-03 to 2018-19 under the Jharkhand Motor Vehicles Taxation Act, 2009, as per Section 6, the rates of which are specified in Schedule-III to be paid

by a dealer/manufacturer of motor vehicles in respect of motor vehicles in his possession during the course of his business. The outstanding trade tax on the number of vehicles/chassis manufactured by the petitioner during this period was thus computed. The rates of penalty has been prescribed under Section 23 read with Rule 4 of the Taxation Rules as also referred to at para-27 and 28 of the judgment of the Apex Court. Penalty has been computed on the outstanding tax liability @ 200% which apparently is the highest rate in cases where the tax is paid beyond 90 days after the due date. Interest @ 12 % appears to have been computed in terms of the interim order of the Apex Court dated 01.08.2003 and after computing the total trade tax liability + penalty + interest to the tune of Rs. 44,95,20,908/-, the amount deposited by the petitioner i.e. Rs. 61,67,125/- have been deducted therefrom to raise the gross demand of Rs. 44,33,53,873/-.

As we have noted hereinabove, the liability of the petitioner to pay tax under Section 6 of the Bihar Motor Vehicles Taxation Act has been settled by the decision of the Apex Court. As per the case of the petitioner, at para-17 of the supplementary affidavit, it had an original tax liability of Rs. 11,27,46,200/-, against which it had deposited only Rs. 61,67,125/-. The amount of penalty thereupon computable in terms of Section 23 read with Rule 4 of the Taxation Rules have been levied by the taxing authority.

19. We, however while observing as above, do not in any manner intend to go into the correctness of the computation of the liability under tax, penalty or interest in exercise of writ jurisdiction. Petitioner has straightaway approached this Court without availing the alternative remedy available in law. Once the liability under Section 6 of the Act stood affirmed, this Court in exercise of writ jurisdiction is not

required to engage in the calculation or computation of the tax liability under Article 226 of the Constitution of India. Having held as above, we however leave it open for the petitioner to approach the respondent No.-4, District Transport Officer, Singhbhum East in case of any dispute in respect of computation of the demand of total tax liability coupled with penalty and interest thereupon which may be considered in accordance with law. Needless to say petitioner if so aggrieved thereby may avail the alternative remedy available in law. We make it clear that any observation made hereinabove are only for the purposes of arriving at a decision on the question of interference in the impugned demand notice in exercise of the writ jurisdiction by this Court. It shall not influence the decision of the assessing authority in this regard. The writ petition is therefore dismissed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) Binit/Mukul