TMI Blog2021 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment years referred, and the sales tax paid or set off, can be taken into account with the aid of the books of account of the petitioner, which can be submitted by him, the assessing officer can very well arrive at a figure as to what was the excess entry tax paid and it is available with the Government, and after finding out the same, the excess entry tax can very well be refunded to the petitioner. Petition disposed off. - W.P.(MD)No.4912 of 2006 And M.P(MD).No.2 of 2006 - - - Dated:- 8-9-2021 - Hon'ble Mr.Justice R.Suresh Kumar For the Petitioner : Mrs.R.Hemalatha For the Respondent : Mr.R.Sureshkumar Government Advocate ORDER Prayer sought for herein is for a Writ of Certiorari, calling for the records on the file of the respondent in his proceedings in TNGST No. 844032/5820022/92-93 94-95 to 2001-2002, dated 09.05.2006 and quash the same, and direct the respondent herein to permit the petitioner to set off the excess entry tax paid by the petitioner for future payment of entry tax (in the month of March 2006), as per the petitioner's representations, dated 23.12.2003, 17.03.2004 and 12.04.2004. 2 .The petitioner is an author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount paid by the petitioner by way of entry tax, shall be refunded to the petitioner, and in this regard, there has been a provision under the said Act under Section 11, under which, whatever the excess amount, which is lying with the taxing authority by way of excess amount, that is, difference amount than the amount payable by way of sales tax in the entry tax account, shall be calculated and be refunded to the petitioner. 8 .When such a request for refund of excess entry tax available with the respondent was made, the same was since not considered, the petitioner had approached this Court by filing writ petition and following the order passed by this Court, dated 03.11.2003, the request of the petitioner, having been considered, the respondent-assessing authority, has rejected it through the impugned order, dated 09.05.2006. Challenging the same, the present writ petition has been filed. 9 .Assailing the said impugned order, Mrs.R.Hemalatha, learned counsel for the petitioner-Assessee, would submit that, the assessing authority rejected the claim of refund made by the petitioner on the only ground that, the difference between the tax payable under sales tax and the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax as well. But, for the purpose of giving benefit for the dealer, who is liable to pay both entry tax and local sales tax, the provision of Section 4 has been made for proportionate reduction in liability whenever the entry tax is paid on the higher side. 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. 12.For all the above reasons, the applications of the appellant/assessee seeking for rectification ought to have been accepted by the authorities concerned. In that view of the matter, the orders impugned in the writ petitions are liable to be set aside and accordingly, set aside. Consequently, the order passed in the writ petitions is also set aside. The writ appeals are allowed. No costs. 14 .Relying upon this judgment, the learned counsel for the petitioner would submit that, as against this judgment and against the further orders passed by in some other matters by the Division Benches of this Court, though two attempts have been made by the Government to prefer SLP, those cases were dismissed at the threshold on condone delay stage itself, therefore, according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1970) by virtue of the sale of such motor vehicle, then his liability under those Acts shall be set off to the extent of tax paid under this Act. 8. I humbly submit that the assessing officer has already finalized the assessment proceedings without passing any excess amount ie., refund of excess paid by the dealer as per Section 11 of Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. As per Section 11, Refund of tax The assessing authority shall refund to a person the amount of tax and penalty, if any, paid by such person in excess of the amount due from him. The refund may be either by cash payment or, at the option of the person, by deduction of such excess from the amount of tax and penalty, if any, due from that person in respect of any other period: 9. I humbly submit that the dealer have made assumptions that they have paid excess of entry tax on vehicles into Local Area Act 1990 after set off against the Tamil Nadu General Sales Tax Act, 1959. 10. I humbly submit that the petitioner has also not approached for re-assessment under Section 9 of Tamil Nadu Entry Tax on Motor Vehicles Act, 1991. As per Section 9 Reassessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990), and in that case, whether the petitioner is entitled to get a refund as provided under Section 11 of the Act, is also a question. 20 .In this context, if we peruse the impugned order of rejection passed by the respondent, he mainly relied upon the judgment of this Court in Kivraj Motors case, cited supra, that is, 139 STC 233, in order to appreciate the same, the relevant portion of the impugned order is extracted hereunder: 5.Recently, the Madras High Court in the case of Tvl.Khiviraj Motor Ltd Vs Assistant Commissioner(CT), Fast Track Assessment Circle No.III, Chennai reported in 139 STC 233(WP.No. 38111 to 38114/2003 and W.P.M.P 46271 to 46274/2003 dated 16.04.2004) after elaborately discussing the case of Ganesh Automobile and other, has held as follows:- Section 4 provides reduction of tax liability of the dealer to the extent of Sales Tax and Additional Sales Tax to be paid on the sales of vehicles under TNGST Act on such vehicles Section 11 provides for the refund of entry tax collected over and above what the dealer is legally liable to pay. The dealers are entitled to claim set-off only in respect of sales tax payable on the entry tax paid under e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned counsel for the petitioner, the prevailing law is that, Section 4 as well as Section 11 of the Act, would apply to the case in hand, therefore, if the petitioner has paid any excess entry tax, certainly, he would be entitled to get the refund of the same. 24 .However, the learned Government Advocate has raised a point that, ofcourse on the basis of the counter affidavit filed by the respondent, the burden of proof, as to whether the petitioner has paid excess entry tax, which, in turn, make him entitled to get refund of the same, lies only on the shoulders of the petitioner alone, and in this regard, by filing the books of accounts, only the petitioner has to establish before the respondent-assessing authority that, he has paid the excess entry tax, during the relevant point of time, and that make him entitle to claim the remaining entry tax after set off towards the sales tax, to be refunded, unless this is established by the petitioner, he would not be entitled to get any refund, and merely because of the statement that he has paid entry tax, it does not become automatic to seek for any refund is concerned, no doubt, whether the petitioner has paid excess entry ..... 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