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2015 (12) TMI 1477 - RAJASTHAN HIGH COURT

2015 (12) TMI 1477 - RAJASTHAN HIGH COURT - [2016] 88 VST 308 (Raj) - Levying of tax under the Rajasthan Tax on Entry of Motor Vehicles Into Local Area Act, 198 - Jurisdiction of AO - Held 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 orde .....

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g had no jurisdiction. - CTO under Section 3(2)(b) had the jurisdiction to assess the assessee according to the area where one ordinarily resides or carries on business or provides any service, therefore, in the instant case assessment will have to be passed by the CTO in accordance with the place of residence or the place of business or place of providing service. In case the respondent-assessee is already assessed to tax by a particular CTO, the same officer would have jurisdiction to asse .....

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2/2008, S.B. Sales Tax Revision Petition No.20/2008, S.B. Sales Tax Revision Petition No.88/2012, S.B. Sales Tax Revision Petition No.336/2008 - Dated:- 31-10-2015 - J. K. Ranka, J. For the Appellant : Ms. Meenal Ghiya for Mr. R.B. Mathur For the Respondent : Mr. Devendra Kumar, Mr. Dinesh Kumar, Mr. Alkesh Sharma and Mr. Gunjan Pathak JUDGMENT By the Court 1. These instant petitions involving common question of law is directed against the order of Rajasthan Tax Board and is decided by this comm .....

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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 w .....

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w to avoiding the tax evasion. v) Whether the view taken by the learned Dy. Commissioner (Appeals) as upheld by the learned Tax Board that the Anti Evasion authorities did not have any jurisdiction over the "persons" but would have jurisdiction only on "dealers" as per the notification No.3(a)(9)Jurs/Tax/CCT/97-1 dated 1.4.1997 issued by the Commissioner, Commercial Taxes and, therefore, the assessment order passed in the present matter would be a "nullity", is lega .....

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ing used by them in the State of Rajasthan. It has been held by the Assessing Officer that on verification of the information gathered from the Regional Transport Officer and on verification of declaration form ET-1 it was noticed that though the vehicles were purchased from outside the State of Rajasthan but brought into the State of Rajasthan without the declaration form ET-1 which according to the Assessing Officer was mandatory to be filled in and filed and non filing is in violation of the .....

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t satisfied with the explanation so offered and in the light of judgment rendered by the Division Bench of this Court in M/s. Ashapura Oil Centre v. State of Rajasthan & Another 2000 (2) WLN 408, held that tax was required to be levied and so also penalty and interest, which according to the Assessing Officer was mandatory. The matter was carried in appeal before the Dy. Commissioner (Appeals), who vide order dated 24.1.2004 while upholding the finding of the Assessing Officer, but came to t .....

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t-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 Vehicle .....

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ales Tax Act, 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, and contended that when all the provisions of the Rajasthan Sales Tax Act are by and large applicable, and the Assessing Officers have power to make an assessment, if the provisions of the Act have been violated, then the very purpose of enacting the law has been defeated by the Tax Board which could not have been the pu .....

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ehicles were purchsed outside Rajasthan were brought in the State of Rajasthan were used in the State but no payment of tax was made, and thus contended that the order of Assessing Officer was just and proper. Alternatively she contended that if at all the Anti Evasion Officer had no jurisdiction the assessment ought not to have been quashed but could have been remanded to the Officer having correct jurisdiction over the assessees and not to quash and set aside the order itself. She relied upon .....

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i 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 ana .....

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ot;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 territory of the Union of India for use or sale therein; Sec. 2(d): "local area" means the area within the limits of,- (i) a panchayat established under the Rajasthan Panchayat Act, 1953 (Act No.21 of 1953); or (ii) a municipality established under the Rajasthan Municipalities Act, 1959 .....

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or tankers built or meant for mounting on chassis of motor vehicles, but excludes tractors; Sec. 2(f): "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: Incidence of Tax.- (1) There shall be levied and collected a tax on the purchase value of a motor vehicle, an entry of which is effected into a local area for use or sale .....

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red in any Union Territory or any other State under the Motor Vehicles Act, 1939 (Central Act 4 of 1939) for a period of fifteen months or more before the date on which it is liable to be registered in the State under the said Act. (2) The tax shall be payable by an importer,- (a) if he is a dealer registered or liable to be registered under the provisions of the RST Act, 1954 (Act No.29 of 1954), in the manner and within the time as tax on sales is payable by him under the said Act; and (b) if .....

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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) Su .....

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ability of the provisions of the RST Act, 1954 (Act No.29 of 1954) and the rules made thereunder.- Subject to the provisions of this Act and the rules made thereunder, the authorities empowered to assess, reassess, collect and enforce payment of tax under the RST Act, 1954 (Act No.29 of 1954) shall assess, reassess, collect and enforce payment of tax including penalty or interest payable by an importer under this Act as if the tax, penalty or interest were payable under the said Act, and for thi .....

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as Rules, 1992: "Furnishing of Declaration.- (1) A person who wants to import a motor vehicle for his personal use, may obtain a blank declaration Form ET-1 on application on simple paper to the Commercial Taxes Officer concerned of the area where he ordinarily resides on the payment of a fee of Rupees ten for each form. The counterfoil of the declaration form shall be retained by such person and its portions marked original and duplicate shall be produced before the officer in charge of th .....

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ng in this behalf to the officer from whom such form was obtained. (4) The application to obtain Form ET-1 under sub-rule (1) shall be rejected if the Commercial Taxes Officer is satisfied that such form is not required 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 v .....

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orated 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, 1954 has been given the same powers t .....

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n a blank declaration form ET-1 on a simple application to the CTO concerned of the area where one resides, and as rightly observed by the Assessing Officer, in all these cases the respondentassessees failed to furnish declaration form ET-1 and to pay the tax which was mandatory for a person importing the vehicle in the State of Rajasthan and was required to pay the tax as prescribed under this Act. In my view, once the finding recorded by the Assessing Officer after having information gathered .....

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uired is that the vehicle on which the levy is to be imposed should be the vehicle imported. In the instant case, the motor vehicles in question which is the subject matter of levy were admittedly imported by the assessees. Therefore, the case law relied upon by the assessees is of no assistance to them and the incidence of tax as provided in Section 3 of the Act is attracted towards the assessees. 22. Coming to the question of implication of Section 4 of the Act which deals with the reduction o .....

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icer. 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 Offic .....

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sed by the learned counsel for the assessees. 23. Then, comes the question of penalty and interest. Both the parties have relied upon Khemka & Co. (Agencies) Pvt. Ltd. v. State of Maharashtra [1975 35 S.T.C. 571]. To appreciate the contention of the parties, we reproduce Section 6 of the Act: 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 g .....

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ed under this Act or in relation to any process connected with such assessment, reassessment, collection or enforcement of payment as if the tax under this Act were a tax under the said Act. Penalty is clearly provided directly under Section 6(1) of the Act. Under Section 6(2) of the Act, interest has been provided by substitution of the Rajasthan Sales Tax Act. When one Statute makes a reference to another Act, then it cannot be said that provision of that Act cannot be read into it. When provi .....

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that the respondent-Department had a right to claim interest from the assessees. We have already found out that the assessees are liable to pay tax. No reduction can be claimed by them. They are liable to pay penalty and interest. These findings result into the total negation of relief to the assessees in the writ petition." 10. Taking into consideration the salient provisions of the Act noted and analysed earlier including Sections 6 and 7, and so also Rule 4, and considering the judgment .....

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ntire 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 ju .....

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x but penalty and interest is also leviable once provisions of the Act are attracted and violated. The judgment of the Division Bench in the case of Ashapura Oil Centre (supra) was duly considered by the Assessing Officer as well as the Dy. Commissioner (Appeals), however the Tax Board for the reasons best known to it has not at all referred to and has not considered the judgment of the Division Bench (supra) which ought to have been considered by the Tax Board as it is the final fact finding au .....

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