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TMI Blog2015 (12) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... asthan Tax on Entry of Motor Vehicles Into Local Area Act, 1988, had no jurisdiction, therefore, has quashed the assessment orders itself. The appeals were admitted on questions :- "i) Whether in the facts and circumstances of the case the Rajasthan Tax Board has not acted illegally and perversely in allowing the appeal filed by the respondent and setting aside the order passed by the appellate authority by which the matter was only remanded to the assessing authority. ii) Whether in the facts and circumstances of the case the Rajasthan Tax Board has not acted illegally and perversely in allowing the appeal filed by the respondent and setting aside the order passed by the appellate authority holding that the Antievasion wing has no jurisdiction in the case of person and simply remanded the matter to the regular assessing authority. iii) Whether section 3(2)(b) of the Act of 1988 does not mutatis mutandis apply on non-dealers just in the same manner in which they apply to the dealer. iv) Whether the anti Evasion Officers do not have the jurisdiction by virtue of section 3(2)(b), 6 & 7 of the Act of 1988 read with the provision of the Rajasthan Sales Tax Act to check the veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), who vide order dated 24.1.2004 while upholding the finding of the Assessing Officer, but came to the conclusion that the Assistant Commissioner, Commercial Tax Department, Anti Evasion Wing had no jurisdiction to pass the assessment order and remitted/remanded the matter to the appropriate Commercial Tax Officer who had jurisdiction to pass assessment order. 3. Both the Revenue as well as the assessees assailed the order of Dy. Commissioner(Appeals). While the contention of the Revenue was that the order passed by the Anti Evasion Wing was just and proper, however, the claim of the respondent-assessees was that once the Anti Evasion Wing has no jurisdiction, therefore, no order could have been passed and the said order by the Assessing Officer was a nullity. The Tax Board accepted the contention raised on behalf of the assessees and quashed the assessment order itself holding that the authority who had passed assessment order had no jurisdiction. 4. Learned counsel for the Revenue drew attention of this court to the salient features under the Rajasthan Tax on Entry of Motor Vehicles Into Local Area Act, especially Section 2(1)(c), (e), (g), Section 3, Section 6(2), Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Anti Evasion Wing had no jurisdiction to pass an assessment order, the Tax Board has come to a correct conclusion and had rightly quashed the assessment as once there is no power to assess and when there is no jurisdiction to assess by the Assistant Commissioner, Commercial Tax Department, Anti Evasion Wing, the order is just and proper and is not required to be interfered with. 6. I have considered the arguments advanced by the counsel for the parties and have perused the impugned order. 7. On analysing the provisions contained under the Act of 1988 vis-a-vis the provisions as contained under the Rajasthan Sales Tax Act, 1994, when all the provisions of the Rajasthan Sales Tax Act applies to the instant Act mutatis mutandis insofar as the assessment and other provisions are contained, certainly some officer gets power to assess, reassess and to determine tax, interest and penalty under the Act. It would be appropriate to refer to some of the provisions contained in the instant Act :- "Sec. 2(c): "importer" means a person who, in any capacity brings or causes to be brought a motor vehicle into a local area from any place outside the State but not being a place outside the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entry checkpost or the Commercial Taxes Officer of the area where he ordinarily resides or carries on any business or provides any service, and the provisions of the RST Act, 1954 (Act No.29 of 1954) as applicable to a registered dealer or casual trader shall, mutatis mutandis, apply to such dealer or, as the case may be, such person. (3) The tax shall be in addition to the tax levied and collected as octroi by any local authority within its local area. Sec. 6: Offences and penalties.- (1) Where any person liable to pay tax under this Act fails to comply with any of the provisions of the Act or rules made thereunder, then the assessing authority may, after giving such person a reasonable opportunity of being heard, by order in writing impose on him in addition to any tax payable, a sum by way of penalty not exceeding fifty per cent of the amount of tax. (2) Subject to the provisions of this Act, all the provisions relating to offences and penalties, including interest, of the RST Act, 1954 (Act No.29 of 1954) shall mutatis mutandis, apply in relation to the assessment, reassessment, collection and enforcement of payment of tax required to be collected under this Act or in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for his bonafide personal use." 8. On conjoint reading of the above provisions and rules it clearly postulates that if a vehicle enters into the State of Rajasthan which is intended for being used in the State of Rajasthan, then one is required to pay tax on entry of motor vehicles as prescribed under the Act, an "importer" has been defined to mean a person who brings or causes to be brought a motor vehicle into a local area from any place outside the State. "Local Area" has also been defined to mean which extends to Panchayat, Municipality etc. "Motor Vehicle" includes motor cars, motor taxi cabs, motor cycles, motor cycle combinations, etc.. "Person" includes any company or association or body of individuals, whether incorporated or not, and also a Hindu Undivided Family, a firm, a local authority the Government of any State or Union Territory. Sec. 3(2)(b) as quoted hereinabove prescribes that the person who brings in vehicle is required to be assessed by the CTO of the area where one ordinarily resides or carries on any business or provides any service. Sec. 7 prescribes that the authorities empowered to assess, reassess, collect and enforce payment of tax under the RST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the checkposts are not there. The assessees could have submitted the Form ET-1 to the Commercial Taxes Officer. In any case, the assessees could have at least obtained it as provided under the Rules. Having not applied and obtained it cannot be said that the assessees were right in claiming that they have fulfilled the prescribed conditions. That being the position, the reduction claimed by the assessees in the writ petition under Section 4(2) of the Act is not applicable to them. Another aspect regarding reduction is that it could be made available if applied. Admittedly, the Commercial Taxes Officer was not moved for it. If the petitioners have not asked for reduction from the Commercial Taxes Officer, then raising a plea in writ petition is an attempt of over reaching. The argument of the learned counsel for the assessees that the Rules have come into being in the year 1992, therefore, the Rules cannot be held mandatory is groundless. Suffice it to say that the language of the Rules and the Act does not make it directory and, therefore, we are not prepared to agree with the argument raised by the learned counsel for the assessees. 23. Then, comes the question of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the judgment of the Division Bench of this court in the case of Ashapura Oil Centre (supra), I am of the view that when one statute make a reference to another Act then it cannot be said that provision of that Act cannot be read into it, and as observed earlier when all the provisions of Rajasthan Sales Tax Act, 1954 are made applicable mutatis mutandis to the provisions under the Act, therefore, the assessment order passed by the Assistant Commissioner, Anti Evasion Wing, though may not be proper but the entire assessment order could not have been quashed and set aside for all times to come. At least when liability under the Act is fastened on an assessee who imports vehicle into the State of Rajasthan for personal use and such intention is to use the vehicle for all times to come, the provisions of the Act cannot be made redundant as held by the Tax Board that the Assistant Commissioner, Anti Evasion Wing had no jurisdiction. It may be that the Assistant Commissioner, Anti Evasion Wing had no jurisdiction but that may not be sufficient to quash and set aside the assessment for all times to come making the Revenue remediless of levying just and proper tax which is due against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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