9911796707
TMI Blog2023 (11) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent under provisions of Tamil Nadu Entry of Motor Vehicles into Local Areas Act 1990 (hereinafter called as Act). The petitioner is a dealer in Forwarding and Clearing Agency and for the business purpose, he had purchased Escorts "Mobile Crane" from other State vide Invoice Nos.052 and 042 dated 31.03.2005 and 28.11.2005 respectively. The contention of the petitioner is that the said Escorts Mobile Crane is used for business purpose within the enclosed premises and not fit to run on road. For the assessment year 2005-2006, the respondent had issued the pre-assessment notice dated 13.10.2011, proposing to make an assessment under the Act for turnover of Rs.51,94,100/- at 20% along with penalty being twice the amount of tax under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and features of the Fork Lift etc. However, the respondent without taking any of these factors have proceeded with assessment. 4. The petitioner attacks the assessment on three grounds and the first ground is on limitation. The Tamil Nadu Tax Entry of Motor Vehicles into Local Areas Act 1990 under Section 8 provides for assessment. Under sub clause 5, it has been categorically stated no assessment can be carried out beyond the period of three years. The relevant portion is extracted hereunder: 8. Assessment "(5) No order of assessment under sub-section (3) or (4) shall be made after the expiry of three years from the last date prescribed for filing of returns of the particular period. If for any reason such order is not made with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct does not make a specific provision for assessment of an importer, who failed to furnish the return under Section 7, it was not within the powers of the assessing authority to assess the importer long after the import made by him, by making use of the details furnished by such importer consequent to the notice of demand made by the assessing authority. However the Learned Additional Government Pleader has submitted that the judgment rendered in M.H.Khanusiya Vs State of Gujarat reported in 2018 SCC Online Gujarat 2191, confirmed by the Division Bench of Gujarat High Court in the case of Hasti Petrochemicals and Shipping Limited Vs State of Gujarat reported in Special Civil Application No.15866 / 2021 would cover the issue. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " will not come under the definition. Under Section 2(28) of the Motor Vehicles Act 1988, the "Motor Vehicle" is defined as under: "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 4[twenty-five cubic centimeters]; 1[twenty-five cubic centimeters];'' 8. The learned counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Government, by notification, on the purchase value of the motor vehicles. When the aforesaid Section clearly states if vehicle is not liable for registration, then the respondent is not empowered to levy tax. In the present case, the vehicle is not liable for registration. Therefore, the respondent is not empowered to levy tax. When there is no jurisdiction to levy tax, then the respondent cannot levy tax. Since under Article 265 of the Constitution of India, any tax can be levied, by the authority of law. If there is no authority, the respondent is not empowered to levy tax. Therefore, the respondent is not empowered to levy tax, since there is no jurisdiction. 11. For all these reasons, this Court is of the considered opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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