TMI Blog2023 (11) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... other taxes like income tax there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, to impose penalty, if returns are not filed. Such provisions are not available in the present Act. The Act only states every person liable to pay tax under the Entry Tax Act ought to file a return. If return not filed, then the Act is not empowering the authorities to take action. In such circumstances, the authorities are not having jurisdiction to pass any order if return is not filed. In the present case since the order is passed beyond the period of limitation of three years, the order cannot be sustained. Whether as per the definition of Motor Vehicle , the Fork Lift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les into Local Areas Act 1990 and invalid. 2. The petitioner was an assessee on the file of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are seven classes of Fork Lifts and classification depends on factors such as applications, fuel options 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 las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son liable to pay tax and the related proceedings for passing the assessment order on best judgment basis. When the Act 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 Shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be sustained. 7. The next contention that was putforth is that as per the definition of Motor Vehicle , the Fork Lift 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icles Act, 1988 (Central Act 59 of 1988). The rate of tax shall be at such rate or rates, not exceeding twenty per cent, as may be fixed by 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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