TMI Blog2004 (4) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 relating to assessment year 1996-97 and quash the same and direct the first respondent to pass an appropriate order after hearing the petitioner and examining the documents. 4.. The writ petition in W.P. No. 38114 of 2003 is filed for the relief of issuance of a writ of certiorari to call for the records in No. Rc.1850/2003/A1 dated December 9, 2003 relating to assessment year 1997-98 and quash the same and direct the first respondent to pass an appropriate order after hearing the petitioner and examining the documents. 5.. In all these writ petitions, the assessee assailed the order of the Assistant Commissioner (CT), Fast Track, Assessment Circle III, Chennai 6, dated December 9, 2003 rejecting the application filed under section 55 of the Tamil Nadu General Sales Tax Act, 1959 to rectify the respective assessment orders. 6.. The case of the petitioner as seen from the petition filed under section 55 of the TNGST Act, 1959, dated August 8, 2003 is as follows: The petitioner is an assessee on the file of the Assistant Commissioner (CT) III for the assessment years 1994-95 and 1995-96 and on the file of the Assistant Commissioner (CT), Fast Track Assessment Circle III, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, to sustain its claim for refund of amount. The learned counsel simply submitted that as the division Bench has directed to refund the excess differential amount between the liability of tax under the TNGST Act and liability of the tax under the Entry Tax Act. Hence, the petitioner is also entitled for refund. 10.. I heard the learned Government Pleader, who argued for sustaining the order of the first respondent. 11.. The order impugned in these writ petitions came to be passed by the assessing officer under the TNGST Act in view of the direction issued by this Court on the petitioner filing a writ petition seeking direction to the assessing officer to dispose of the representation of the petitioner dated March 18, 2003 within a period of one month from the date of receipt of copy of the order. The assessing Reported in [2004] 134 STC 272. officer in obedience to the directions issued by this Court passed the impugned order. I am of the view that the assessing officer would not have ventured to pass the impugned order when he was directed to dispose of the representation of the petitioner in accordance with law only. 12.. As already stated, the petitioner filed an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no mistake, whatsoever, apparent on the face of the record. Hence, the petitioner is not entitled to have an order of rectification under section 55, but for the direction issued by this Court in the earlier writ petition. It can very well be seen from the order, the petitioner very innocuously submitted that a representation has been made on August 8, 2003 to the assessing authority without disclosing a statutory petition that has been filed under section 55 and obtained an order to dispose of the representation. 14.. It may be true that there is nothing in article 226 of the Constitution of India to preclude the High Court from exercising the power of review, rather judicial review, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error committed by it. Viewing by this angle, the order impugned can very well be set aside restoring the assessment order. However, as the learned counsel for the petitioner is relying on a decision of this Court in support of his case, this Court ventured to proceed further. 15.. On the outset, it should be made clear that the tax payable under the two enactments, i.e., t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or as part of, any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration." 18.. However, the charging section-section 3 of 1990 Act provides for levy of tax, which reads that subject to the provisions of this Act, there shall be levied and collected tax on the entry of any motor vehicles into any local areas for use or sale therein which is liable for registration, or for the assignment of a new registration mark in the State under the Motor Vehicles Act, 1988 (Central Act No. 59 of 1988). 19.. The preamble of the Act reads that the 1990 Act is an Act to provide for the levy of tax on the entry of motor vehicles into local areas for use or sale therein. The Statement of Objects and Reasons for enactment of the Act published in the Government Gazettee dated February 20, 1990 reads as under: "In order to curb the evasion of sales tax on the sale of motor vehicles which are purchased outside the State and brought into this State, the Government have decided to levy tax on entry of motor vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 8, which are not material for our purpose. 24.. From the foregoing statutory provisions, it is clear that in respect of a dealer, who is dealing in motor vehicles, if the dealer imports into notified area the motor vehicles, either for use or for resale, the dealer shall pay the tax on the entry of motor vehicles into local area at the rate as fixed by the Government on the purchase value of the motor vehicle. However, section 4 provides for reduction of tax liability of the dealer to the extent of sales tax and additional sales tax liable to be paid by the dealer on the sale of such motor vehicles. Under this provision, the sales tax and additional sales tax payable by a dealer in respect of a sale of a motor vehicle can be adjusted or set off can be given on the amount of entry tax paid under the provisions of the Entry Tax Act. On the face of this statutory provision, I am of the view that if the dealer paid entry tax on the taxable event of entry of motor vehicle into the local area and there again liable to pay sales tax on the vehicle being sold, the assessing officer, after determining the tax liability under the Sales Tax Act, shall adjust the said tax liability out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on it. As per section 11, the assessing authority shall refund to the person the amount of tax and penalty if any paid by such person in excess of the amount due from him. Section 10 of the Act provides for payment of entry tax and section 11 of the Act provides for refund of excess tax paid. In the present case, after adjusting the tax payable by the petitioner under the Tamil Nadu General Sales Tax Act in the entry tax paid, there is availability of excess amount of tax paid by the petitioner and as such, the petitioner is entitled for refund of such excess amount." 27.. I am of the view, on the reading of the reasoning given by the division Bench, that the decision cannot be made applicable to the facts of the present case. The case before the division Bench was one, wherein the respondent-assessing officer admitted the availability of an excess amount of entry tax, but the only contention by him was that there is no provision for refund of the same. The division Bench referred section 11 of the Act and states that the excess amount of entry tax has to be refunded. The isolated sentence in the judgment to the effect that "in the present case, after adjusting the tax paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in [2002] 255 ITR 147 (SC); 2002 AIR SCW 1156, it was held that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the factual situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. In the case of Moon Rock And Marble Company v. State of Tamil Nadu reported in (1995) 1 MLJ 572, it is held by this Court that what is expressed in the judgment should be considered as a binding proposition of law and what is not expressed cannot be taken into account. 31.. In view of the foregoing reasons, I am of the view that the division Bench judgment, with which reliance has been made by the petitioner, is not applicable to the facts and circumstances of the case. In view of the discussion made above with reference to the provisions of the Entry Tax Act, particularly, sections 4 and 11, I am of the view that the petitioner is not entitled to the relief as prayed for. Hence, the writ petitions are dismisse ..... 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