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2010 (2) TMI 1164 - MADRAS HIGH COURTRefund claim - refund of the excess tax paid in terms of Section 11 of the Entry Tax Act - proportionate reduction in tax liability in terms of Section 4 of the Entry Tax Act - denial on the ground that after adjusting the tax payable by the petitioner under the Tax, Surcharge and Additional Sales Tax, there is no excess amount to be refunded as per the assessment order - it was contended that when excess entry tax was paid, the finding that there was no excess amount is a factual mistake apparent on the face of record - whether on the given facts of the case, an application for rectification could be filed? Held that: - in terms of proviso to the section 55, no such rectification, which has the effect of enhancing the assessment or any penalty, shall be made unless such authority has given notice to the dealer and has allowed him a reasonable opportunity of being heard - it is not in dispute that under the provisions of Entry Tax Act, the appellant/ assessee should pay 13% entry tax and they had also paid and equally, under the Local Act, the assessee had to pay 8% upto 16.7.1996 towards sales tax and thereafter, for the subsequent assessment years they should pay 11% sales tax, which also they had paid. The percentage of tax to be paid under the respective Acts if considered, the appellant/assessee had to pay excess of tax under the entry tax and therefore, the finding of the authority that there was no excess tax collected or available is factually incorrect, which may be rectified. For entitlement of reduction in tax and consequent refund and when the same has not been taken into consideration, it could be termed to be a mistake apparent from the record and the same could be rectified. When once Section 4 is made applicable, correspondingly the excess amount if any paid by the dealer is to be refunded in terms of Section 11 of the Act. Appeal allowed - decided in favor of appellant.
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