Madras High Court
M/S.Vishnu Enterprises vs The Commercial Tax Officer on 27 July, 2016
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 27.07.2016 CORAM THE HONOURABLE MR.JUSTICE T.S. SIVAGNANAM W.P. No.13631 of 2005 and W.P.M.P. No.14938 of 2005 M/s.Vishnu Enterprises, represented by Rajesh Mittal, Proprietor 43, Eldams Road, Teynampet, Chennai 600 018 ... Petitioner -vs- The Commercial Tax Officer, Alwarpet Assessment Circle, 46, Greenways Road, Chennai-600 028. ... Respondent Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari, calling for the records on the file of the respondent in TNGST.0820435/01-02 (Entry Tax) dated 25.01.2005 and quash the same as being invalid and illegal. For Petitioner : Mr.V.Srikanth For Respondent : Mr.Manokaran Sundaram, Additional Government Pleader O R D E R
Heard Mr.V.Srikanth, learned counsel appearing for the petitioner and Mr.Manokaran Sundaram learned Additional Government Pleader appearing for the respondent.
2. The petitioner being a partnership firm had purchased a Maruti Car on Hire Purchase basis from a company at Pondicherry on 02.07.1996 for a sum of Rs.2,31,312/-, after payment of sales tax at Pondicherry.
3. The petitioner during the year 2001-2002 sold the car for a sum of Rs.79,000/- and when they have filed the returns under the TNGST Act, they have disclosed sale of the capital asset. Based on that, the respondent has assessed the petitioner to tax and imposed entry tax on the purchase value of the motor vehicle after adding 2% towards insurance and other incidental charges and passed the order of assessment dated 25.01.2005. This order is challenged on the grounds that the proceedings of the respondent is without jurisdiction; that the entry tax cannot be charged at the time of sale of the vehicle and it is not within the power of the assessing authority to assess the importer long after import has been made. Further it is contended that the impugned assessment is also barred by limitation.
4. The legal issue involved in this Writ Petition is squarely covered by the decision of the Hon'ble Division Bench in Sri Balakrishna Transport Vs. Commercial Tax Officer, Tambaram I Assessment Circle, Chennai (2010) 28 VST 0356, wherein the identical issue was considered, though in respect of a JCB Vehicle, however, that does not in any manner, affect the application of judgment in the present proceedings. At this stage, useful reference may be made to the relevant portion of the order passed by the Hon'ble Division Bench, which shall read as follows:-
....Though Section 7 requires every person liable to pay tax under the Entry Tax Act to file a return to the designated authority, there is no specific provision in the Entry Tax Act for assessing a person, who has failed to furnish the return. Section 8 of the Act provides for assessment on the basis of the return furnished by a person liable to pay tax and the related proceedings for passing the assessment order on best judgment basis. When the Act does not make a specific provision for asessment of an importer, who failed to furnish the return under Section 7, it was not within the powers of the assessing authority to assess the importer long after the import made by him, by making use of the details furnished by such importer consequent to the notice of demand made by the assessing authority. ....The Entry Tax Act provides time-limit for making a best judgment assessments, as well as reassessment. When there is no specific provision in the Entry Tax Act for assessing a person who fails to furnish returns, the respondent was not entitled to make an assessment after a considerable point of time. It is trite that in case the words used in a taxation statute are plain and unambiguous they have to be interpreted in such a manner so as to give full effect to the wording of the statute. It is not permissible for including something in a taxing statute so as to give it a different meaning. In the absence of a provision enabling the tax collector to levy tax, it would be impermissible for including something in a taxing statute so as to give it a different meaning. In the absence of a provision enabling the tax collector to levy tax, it would be impermissible to levy tax, even if equity is in favour of the State. Therefore there should be an express provision authorising the assessing authority to collect tax from an importer, who failed to file returns as provided under section 7 of the Entry Tax Act. However there is no such provision which enables the authority to make an assessment for the purpose of recovery of entry tax.....
5. As pointed out by the Hon'ble Division Bench, unless there is a express provision, authorising the assessing officer to collect tax from the importer, who failed to file returns, as provided under Section 7 of the Entry Tax Act, the respondent would have no jurisdiction to make assessment for the purpose of recovery of entry tax.
Thus, following the decision of the Hon'ble Division Bench, referred above, the Impugned order is held to be without jurisdiction. Accordingly, the Writ Petition is allowed and the impugned order is quashed. Consequently, connected miscellaneous petition is closed. No costs.
27.07.2016 Index: Yes/No;
Internet: Yes / No ssd T.S. SIVAGNANAM,J.
ssd To The Commercial Tax Officer, Alwarpet Assessment Circle, 46, Greenways Road, Chennai-600 028.
W.P. No.13631 of 2005