TMI Blog2005 (11) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... n the State of Madhya Pradesh. The tender of the petitioner was accepted and eventually a contract was awarded to him. As per the contract, construction was to be carried out at Compartment No. 447, Chandgarh Forest Range, near Khandwa. It is contended in the petition that it is a registered dealer under the M.P. Commercial Tax Act, 1994 and therefore is also a dealer under the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for brevity the Entry Tax Act ). As pleaded, as per section 3 of the Entry Tax Act, tax is to be levied on the entry of goods into the local area in course of business of a dealer. The construction work is carried out in forest Range No. 447 Chandgarh, near Narmada Nagar, District Khandwa and the same does not fall within any local area as defined under the Entry Tax Act. The petitioner-company was subjected to payment of entry tax for the first time in the year 1992-93 on the foundation that the site area was covered by definition of local area as specified under the Entry Tax Act. Being dissatisfied with the aforesaid order, the petitioner preferred a revision before the Additional Commissioner at Indore who set aside the said order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontending, inter alia, that since 1999-2000 assessment order was based on the direction of the Additional Commissioner, the same cannot be opened; that no reasons have been assigned for reopening; that as against the order of the Additional Commissioner, what had weighed with the assessing authority was not clear; that the reasons should be disclosed before passing of the order; and that reopening of the case should not be permitted. The assessing officer did not respond to the objections raised by the petitioner and went on to pass orders in all cases. The said order has been brought on record as annexure P16. Against the aforesaid order, the petitioner filed revision petitions at Bhopal and applied for stay before him but no stay was granted and both revision petitions and stay applications are pending for disposal before the Additional Commissioner. The assessing authority despite the pendency of the revision issued form 45 to the bankers of the petitioner and to National Hydro Development Corporation (previously NVDA) as a consequence of which the petitioner has been restrained from operating the bank account and getting payment from NHDC. Copies of orders have been brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a writ of prohibition to recover the aforesaid amount f entry tax and penalty as detailed in annexures P16 and P18A and P18-B. 7(iii) to issue any other writ, order or direction as the court deems fit and proper. A return has been filed in W.P. No. 2185 of 2004 which has been adopted in all the cases, contending inter alia that the petitions filed are premature inasmuch as the revisions against the orders of assessment have been filed by the petitioner and the same are pending decision and the present petitions have been filed only against the show-cause notice for reopening the assessment on the ground that the original orders have escaped assessment under the Entry Tax Act. The respondents relying upon the decision of this court in Milan Supari Stores v. Assistant Commissioner of Commercial Tax (M.P. No. 1083 of 1996(1)) have contended that the petitions filed against the notice proposing reopening of assessment are premature and not entertainable. It is put forth that the reasons proposed for reopening of the assessment have been mentioned and therefore contention of the petitioner that the notice does not contain (1)See [1997] 107 STC 407 (MP). any reason is misconceiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the action of the respondents. The answering respondents have further contended that the answering respondents are bound to follow the decision of the Board of Revenue which lays down the proposition of law. The principle of binding precedent is not applicable in the present case. A rejoinder affidavit has been filed by the petitioner to the said return contending, inter alia, that Notification dated March 9, 2004 does not disclose as to what is the area of Narmada Nagar. It does not show the patwari circle, or khasra number or compartment number constituting Narmada Nagar. It also does not show the boundaries of the Narmada Nagar Panchayat. It is stated that the Compartment No. 447, Chandgarh Range where construction is going on does not fall within any local area and no fresh evidence has been brought on record to show that the area fell within the local area. It is contended that the said notification issued by the Panchayat and Village Development Department, in item No. 14, on the eastern side there is forest village which has been declared as Narmada Nagar which falls within the local area. It is further stated that in order annexure P4 dated June 12, 1998, the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be able to get any relief in view of the decision of the Board of Revenue. The petitioner has contended that question of escaping assessment does not arise, it being neither a case of under-assessment or escaped assessment and the action to review or revise the assessment under section 28 is unjustified. I have heard Mr. Kalavin Gulati and Mr. Shekhar Sharma, learned counsel for the petitioner and Mr. S.K. Yadav, learned Government Advocate for the State. Before I proceed to enumerate the rival submissions raised at the bar, it is seemly to state that Mr. Yadav, learned Government Advocate has raised a preliminary objection on behalf of the respondents that there is alternative and efficacious remedy for the petitioner and instead of availing that, the petitioner has straightway approached this court under article 226 of the Constitution of India. Controverting the aforesaid submission, it is put forth by Mr. Gulati and Mr. Sharma, in the decision of Larsen and Toubro [2001] 27 TLD 921, it has been held that the entire area of Madhya Pradesh is a local area and the assessing officer has relied upon the said decision in his assessment order and once the superior authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has already held that area of operation does not fall within the local area and under this circumstance, the assessing officer cannot issue notices for reassessment under section 28 treating the area as a local area. In the obtaining factual matrix, the same cannot be considered as an under-assessment or an escaped assessment. (d) No cogent reasons have been ascribed while initiating the assessment. Section 28 of the Act of 1994 envisages that the assessing officer, prior to issue of notice, must come to a conclusion that there has been an escaped assessment or under-assessment. In the case at hand, as no reasons have been recorded, the notice to show-cause for reassessment is vitiated in law. The order of assessment passed by the assessing officer has to pave the path of extinction, inasmuch as the doctrine of audi alteram partem has been given an indecent burial, inasmuch as in a hot haste, reassessment has been ordered, though the provisions engraft grant of reasonable opportunity. (e) The order to show cause and the order of assessment are totally based upon the decision rendered in the case of Larsen Toubro [2001] 27 TLD 921 and the real power that has been res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding is not based on escaped assessment or under-assessment is totally misconceived. The finding recorded by the assessing officer is not vitiated as reasonable opportunity was granted. Though the rivalised submissions are manifold, the basic question that arises for consideration is whether the petitioner is carrying on its business within the local area as defined under the Act. It is worth noting that on earlier occasions, a finding was recorded that the petitioner's working area is not coming within the local area . The judgment rendered by the Board of Revenue in Larsen Toubro [2001] 27 TLD 921 holds that the entire State of M.P. would be local area. How far the same is correct or not, I am inclined to think need not be adverted to in the present case. In the case at hand, on earlier occasions relying on number of documents namely, (i) Certificate of Range Officer Chandgarh dated December 25, 1995 (see page 21), (ii) Letter of Sarpanch Narmada Nagar dated December 21, 2000 (see annexure 19 page 75 and page 45), (iii) Letter from NHDC (see page 4546), (iv) Letter from the Forest Range Officer, Chandgarh dated September 5, 2001 (see page 47), (v) Letter from Chief Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as justified in holding that the income derived by the Radhasoami Satsang was entitled to exemption under sections 11 and 12 of the Income-tax Act of 1961. Counsel for the Revenue had told us that the facts of this case being very special, nothing should be said in a manner which would have general application. We are inclined to accept this submission and would like to state in clear terms that the decision is confined to the facts of the case and may not be treated as an authority on aspects which have been decided for general application. In the case of Commissioner of Trade Tax, U.P. v. Mansarovar Bottling Co. Ltd. Civil Appeal No. 842 of 2002 [2006] 145 STC 659, the apex court took note of the fact that Sales Tax Tribunal by order dated February 25, 1995 had set aside the first petition on the ground that reasonable opportunity had not been granted to the respondents. The liberty was granted to the Divisional Level Committee to reconsider the application of the petitioner for grant of eligibility certificate. The D.L.C. rejected the application for the second time on September 8, 1995. Three reasons were given in support of the rejection, all reasons based on Explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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