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M/S. AUTO TRADING COMPANY versus COMMISSIONER TRADE TAX U.P. LUCKNOW

High Court of Judicature at Allahabad

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M/S. Auto Trading Company v. Commissioner Trade Tax U.P. Lucknow - SALES/TRADE TAX REVISION No. 32 of 1997 [2005] RD-AH 4263 (17 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.55

TRADE TAX REVISION NO.32 OF 1997

AND

TRADE TAX REVISION NO.33 OF 1997

M/s Auto Trading Company.        ....Applicant

Versus

Commissioner Trade Tax, U.P., Lucknow. .Opp.party

...............

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 23.11.1996 relating to the assessment years 1976-77 and 77-78.

The controversy involved in the present revisions relates to the rate of tax on the turn over of station wagon.

The claim of the applicant was that the station wagon was liable to tax under the notification no.ST-II-2956/X-6(17)-76 dated 20th May, 1976 as a mini bus under Entry 62 (B) @ 9%. However, the turn over of the station wagon was assessed to tax @ 12% on the basis of the decision of this Court in the case of M/s Gopal Enterprises Vs. The Commissioner of Sales Tax, U.P., reported in 1976 UPTC, 1129 under the aforesaid notification.  Applicant filed writ petition no.618 of 1980 challenging the orders passed under section 21 of the Act levying the tax @ 12% on the turn over of station wagon. This Court vide order dated 21.08.1991 allowed the writ petition and directed the assessing authority to decide the issue afresh on the basis of material on record. This Court has observed as follows:

"We find in this case that the assessing authority in both the relevant years in question has not decided this question on the basis of the evidence on record whether ''station wagon' in common parlance is to be treated as ''motor bus' or not."

In pursuance thereof assessing authority examined the issue afresh and vide orders dated 23.09.1992 again held that station wagon is not motorbus and liable to tax under Entry 62 (c) of the notification @ 12%.  Aggrieved by the assessment order, applicant filed appeal before the Deputy Commissioner (Appeals), Trade Tax Bareilly. Deputy Commissioner (Appeals) accepted the plea of the applicant and held that station wagon is liable to tax @ 9% being covered under the entry of motorbus.   First appellate authority held that station wagon is mini bus and merely because in the station wagon there are 9 seats and in mini bus there are 16 seats, it can not be treated differently. Commissioner of Trade Tax filed appeals before the Tribunal. Tribunal by the impugned order allowed the appeals and set aside the order passed by the first appellate authority. Tribunal held that station wagon is not a bus and, therefore, not covered under the Entry 62 (b) of the notification no.2956 and is liable to tax under the residuary Entry 62 (c) of the notification @ 12%..

Heard learned counsel for the parties.

I have perused the order of Tribunal and the authorities below.

Learned counsel for the applicant submitted that station wagon has nine seats and is used for the transportation of the passengers like mini bus. Therefore, it falls under "Motorbus" and liable to tax @ 9%. He submitted that station wagon is a kind of  mini bus with a common object to carry the passengers and merely because it has nine seats  and small in size, does not ceases to be the bus. Learned Standing Counsel submitted that station wagon is a small vehicle with nine seats to carry the passengers. He submitted that it is a vehicle between a motorcar and mini bus and is not known as bus in common parlance and in commercial sense. He submitted that in common parlance and in commercial sense station wagon is always identified and known as motor vehicle different from bus. He submitted that the brochure of the various varieties of vehicles, which has been filed by the applicant, also shows that station wagon and mini bus are considered as two different varieties of motor vehicle.

To understand the controversy it is necessary to refer the relevant notification no.ST-II-2956/X-6(17)-76, dated 20th May, 1976, which reads as follows:

Entry Description of Goods. Rate of tax

62 (a)   Motor car 7 per cent

(b) Motor trucks and Motor buses including their chassis and motor bodies built thereof. 9 per cent

(c) All other motor vehicles including their chassis and motor bodies of all shapes and designs (including motor carvans and tankers), whether built on chassis or separately. 12 per cent.

The aforesaid entry has been considered by the Division Bench  of this Court in the case of applicant itself. Division Bench has observed as follows:

It is this decision which has been relied by the learned Standing Counsel to contend that for the purpose of interpreting the aforesaid notification what is important is as to whether ''station wagon' in common parlance is treated to be a ''motor car or ''motor buses' or not and in case it does not fell under both entries, it would fall under residuary entry (c). In the present case the learned counsel for the petitioner confines his case on ''station wagon' falling under entry 62 (b) of the aforesaid notification. We find in this case that the assessing authority in both the relevant years in question has not decided this question on the basis of the evidence on record whether ''station  wagon' in common parlance is to be treated as ''motor bus' or not."

Motor bus, motor car and station wagon have not been defined under the statute, therefore, it is useful to refer the dictionary meaning:

Random House Dictionary of the English  language defines ''bus' as under :

BUS: a motor vehicle with a long body equipped with seats or benches for passengers, usually operating as part of a scheduled service line: omnibus.

Similarly ''motor bus' has been defined as under:

''Motor bus' a passenger bus powered by a motor.

''Motor car' has been denied as under :

Motor car An automobile, a self propelled car for freight or passenger.

In Webster dictionary also the definition of ''motor bus' is given as under :

"Motor bus" an automotive omnibus, motor coach.

In "The New Oxford Illustrated Dictionary" ''motor car' and ''motor bus' are defined as "motor driven - four wheeled passenger road vehicle.

In Random House Dictionary the definition of ''station wagon' as under:

"Station Wagon" an automobile with one or more rows of folding or removable seats behind the driver and no luggage compartment but an area behind the seats into which suitcases, parcels etc. be loaded through a tall gate.

Brochure enclosed alongwith revision petition gives the following details of the station wagon and mini bus:

STATION WAGON MINI BUS

9-Seater personnel carrier for quick movement. Ideal for air-crews, office personnel, large-sized families. Wheel Base 2400 mm. Personnel carrier for sixteen. For intracity and inter-city use. Wheel Base 3380 mm. A variant is the 22 seater City Bus highly manoeuvrable it is perfectly suited for narrow Indian streets. This and its proven fuel economy make it the right choice for medium sized town operating Municipal Public Transport.

In the case of  M/s Gopal Enterprises Vs. CST, reported in 1979 UPTC, 1129 learned Single Judge has considered the question about the rate of tax of station wagon. Learned Single Judge held that station wagon is liable to tax under the residuary category of clause (c) of Entry 62 of the notification no.2956 dated 20.05.1976. The relevant para of the decision is as below:

"that the word ''motor car' must be given a restricted meaning. Station wagons sold by the assessee although used by passengers would fall into residuary category of clause (c) of  Notification No.ST-II-2956/X-6 (17), dated 20.05.1976 as they are not vehicles which are commonly used by passengers like the other cars for traveling. Their shape, design and capacity is such as they would not be called motor cars in common parlance. They were rightly held to be taxable at the rate of 12%."

Tribunal on a consideration of the aforesaid brochure held that station wagon and mini bus are two different variety of motor vehicle and station wagon can not be treated as bus. First appellate authority has observed that technical specification of both station wagon and mini bus is same and both are used for carrying the passengers and merely station wagon has 9 seats and mini bus has 21 seats, both station wagon and mini bus can not be treated differently. I do not find substance in the view taken by the first appellate authority. Station wagon and mini bus are considered as two different varieties of motor vehicle in the brochure and they are separately named. The brochure shows that station wagon has 9 seats while mini bus has 21 seats. Wheel base of Station wagon is 2400 mm, while wheel base of mini bus is 3380 mm. Station wagon is normally used for domestic purposes while mini bus is used for commercial purposes. In common parlance and in commercial sense both station wagon and mini bus are considered as two different varieties of motor vehicle. Common people never considers station wagon as bus. In this view of the matter, the view of the Tribunal is upheld.

In the result, revision fails and is accordingly, dismissed.

Dt.17.10.2005

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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