T.R. Ravi, J.
1. The appellant, a doctor, having 60% permanent disability as assessed by the Medical Board, has approached this Court challenging the amendments to a notification issued under Section 22 of the Kerala Motor Vehicle Taxation Act, 1976.
2. As per S.R.O.No.301/98 (Ext.P4), the Government of Kerala had exempted motor cars, owned by physically handicapped persons for their own use, whether driven by the handicapped persons themselves or by others for the transport of such handicapped persons, from the liability to tax under the Act. The appellant comes within the category mentioned in the notification. Thereafter on 18.03.2016, the Government issued S.R.O.No.296/ 2016 (Ext.P5), amending Ext.P4 restricting the benefit to motor cars of purchase value of less than Rs.5 lakhs. By G.O. (P)No.1/2018/Tran. dated 12.01.2018 (Ext.P6), the limit of Rs.5 lakhs was enhanced to Rs.7 lakhs. The appellant challenges the restriction regarding the value which have been brought in by Exts.P5 and P6 on the ground that the same is ultra vires and arbitrary. The appellant also challenges Exts.P3 and P7 whereby he has been directed to remit the road tax, finding him not entitled for tax exemption for reason of the higher cost of the vehicle he purchased. It is noticed in Ext.P3 that the purchase value of the motor car owned by the appellant was Rs.20,62,100/-.
3. Heard Sri P.Jayaram on behalf of the appellant and Sri P.Santhosh Kumar, Special Government Pleader (Motor Vehicles) on behalf of the respondents. On behalf of the appellant the grounds raised against the restriction of the exemption to vehicles having a certain value are of hostile discrimination, violation of Section 41 of The Rights of Persons With Disabilities Act, 2016 and on the particular necessity of the appellant, who is a qualified medical doctor. The State relies on the precedent of this Court itself and argues for providing enough elbow room in not only taxation but also exemption from tax levied.
4. In the decision in Pahalisha Kalliyath v. State of Kerala [2016 (3) KLT 368], a learned Single Judge of this Court held, that what is granted by Ext.P4 notification is a concession and limiting of the concession to certain class of persons depending upon their financial viability, cannot be termed as irrational or arbitrary. A Division Bench of this Court in the judgment in W.A.No.1071 of 2016 held that the concession as per Ext.P5 being a financial incentive, the Government is well within its powers to impose suitable conditions and restrictions. The Division Bench further observed that a privilege being entirely different from a right, fundamental right at that, they are of the opinion that the contention regarding discrimination or unreasonableness does not apply.
5. The counsel for the appellant has a contention that the decisions aforesaid are not correctly decided. Since such a contention is raised before us we are proceeding to examine the issue on merits, over again.
6. In support of his contention, the counsel for the appellant relies on the judgment of the Hon'ble Supreme Court in Union of India and others v. N.S.Rathnam and Sons reported in [(2015) 10 SCC 681]. The issue before the Supreme Court was regarding the duty of excise payable on iron and steel scraps obtained by breaking a ship. By a notification issued in 1987, the whole of such duty was exempted subject to the condition that customs duty should have been levied at the rate of Rs.1,400/- per Line Displacement Tonnage (LDT). The effect of the exemption was that those persons who paid customs duty at a lesser rate will not get the benefit of exemption even though they are also engaged in the same trade and belong to the same class of persons who are involved in breaking of ships and sale of scrap. The Supreme Court was considering the issue at the instance of the Revenue, since the Division Bench of the High Court had held that exemption should apply to persons who have paid duty at the lesser rate also. In paragraph 8 of the judgment, the reasoning of the Division Bench of the High Court has been extracted and it can be seen therefrom that the Bench had noticed that the purpose of grant of exemption was to avoid double taxation and the denial of exemption was to persons who paid lesser customs duty; which was also only by reason of there being provided an option to pay under any of the two methods. The withdrawal/ denial of exemption would mean that certain persons would be mulcted with both additional duty under the Customs Act as well as excise duty. It was further noticed that persons who paid customs duty at the rate of Rs.1,400/- per LDT, would stand totally exempted from the payment of excise duty. The Supreme Court has laid down the principles regarding the justiciability of such notifications in paragraph 13, which is extracted below.
“13. It is, thus, beyond any pale of doubt that the justiciability of particular Notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the priviliges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough. Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification.”
7. The Hon'ble Supreme Court has found on facts that there was discrimination between two persons falling within the same class; especially looking at the intention of the exemption notification, which is avoidance of double taxation. The finding entered of discrimination was by reason of no intelligible differentia having been demonstrated. However classification was held to be permissible when it is founded on an intelligible differntia and the differential having a reasonable nexus with the object sought to be achieved.
8. In the case on hand, the amendment notifications Exts.P5 and P6 cannot be treated as a case of class legislation. The said notifications apply uniformly to all persons within the class, that is, persons with disability. All persons falling under that class have been extended the very same exemption from tax with regard to motor vehicles of a particular value. The classification is not of the equally placed disabled persons, but in the price of the cars they purchase which has a direct relation to the purchasing power of the person and not at all on his disability. There is also reasonable nexus to the object sought to be achieved, which is a concession to facilitate the mobility of displaced person without the fetter of taxation ensuring that such exemption is not made available to certain class of vehicles, the purchase of which being not intended at mobility alone but also has the element of a luxury. It cannot lead to an insistence or crystallize into a right to choose the class of vehicle.
9. Exemption is granted from taxation in exercise of specific power granted by the Statute. It is well settled that the power to exempt includes the power to modify or withdraw the exemption. (See Union of India v. Unicorn Industries [(2019) 10 SCC 575)]. In Kothari Industrial Corporation Ltd. vs. TNEB & Anr. reported in [(2016) 4 SCC 134], the apex court held that the right to avail exemption is a defeasible one in the sense that it may be taken away, in exercise of the very power under which the exemption was granted. So also, the Hon'ble Supreme Court has held that even in cases where exemption has been granted for a particular period, it is within the powers of the State to withdraw the exemption, before the expiry of the period for which it was granted. The apex court has held that the principles of promissory estoppel will not be applicable in such cases. (See Kasinka Trading and Another v. Union of India and Another [(1995) 1 SCC 274] and State of H.P. v. Kundan Lal Ahuja and Another [(2000) 10 SCC 559]. In the case on hand, exemption which was granted was later modified to be available only to vehicles which were not more than Rs.5 lakhs in value, which was again modified by extending the limit upto Rs.7 lakhs. In our opinion, the dictum laid down by the Hon'ble Supreme Court in the above cases squarely applies in the case and the notifications issued by the State restricting the exemption is valid in law. There is no question of the petitioner being discriminated since the exemption is still available to all persons who are having disability; but with respect to vehicles having a particular cost price. Just like the classification of persons with disability and those without disability, for the purpose of grant of exemption is justified in law, the classification here is of vehicles on the basis of their value for the purpose of determining the amount upto which exemption is to be granted; which is perfectly justified. We fully endorse the views expressed by the Division Bench of this Court in the judgment in W.A.1071 of 2016 and the Single Judge in the judgment in Pahalisha Kalliyath (supra) and hold that the decisions do not require any reconsideration.
10. Section 41 of the RPWD Act also directs the appropriate Governments to take suitable measures for providing access to transport to the disabled. It speaks also of schemes to promote personal mobility at affordable costs for the disabled by way of concessions and incentives. The benefit by way of an exemption is to the disabled and to ensure that their basic need to be mobile is not further fettered by reason of the tax for use of vehicles on the road. But in granting exemption the Government sought to bring in a limit to the cost of the vehicle, which is eminently permissible. As we already found it is not a discrimination of equally situated disabled but a reasonable classification on the basis of financial capacity. There is no discrimination of equals since the c
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lassification is of un-equals; more so when, by the exemption the State seeks to ensure the smooth mobility of persons, who's mobility is even otherwise hampered by the unfortunate disability suffered by them and not to provide such mobility by a chosen vehicle. There can be no right found from Section 41 to travel in a vehicle of a particular class or price. 11. The contention is also that the petitioner is a Doctor, who has to make house calls and requires to accommodate a wheel chair in the car thus requiring more space. It is admitted that the appellant was using other vehicles availing the exemption from tax and he has only now purchased this particular luxury vehicle. He has availed the exemption with respect to smaller cars and he had carried himself with the wheel chair in such cars too. There is no case that he has suffered any further disability which requires a larger vehicle or a luxury vehicle nor is the space constraints established by any statistics. We do not see any reason to differ from the earlier decision on the particular needs urged here; which also lacks substantiation. The appeal fails and is dismissed. The parties will bear their respective costs.