9911796707
TMI Blog2023 (11) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... 22,42,960/-. The penalty of Rs. 4,20,555/- was imposed under Section 15 of the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990, without any show cause notice for penalty under Section 15 of the Act. Thereafter, the petitioner has filed detailed reply dated 01.10.2021 for revocation of the order dated 24.12.2019. Considering the same the respondent had passed an order dated 05.10.2021, thereby dropped the levy of penalty based on judgments cited, but sustaining the levy of Entry Tax of Rs. 2,80,370/-. In the meantime, third pre-revision-cum-personal hearing notice dated 21.12.2021 had been served on the petitioner proposing to re-impose the penalty which had been already dropped vide order dated 05.10.2021. The reason for re-levy of penalty as stated in the order is that on verification of records, it is noticed that the assessment was revised without any orders from the judicial forum or departmental appellate authorities. It is noted that the revision of assessments without any directions from the judicial forum or departmental appellate authorities is not allowed as it is prejudice to the revenue, hence it is proposed to reimpose the penalty. After receipt of notice, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as deemed assessment. Moreover, the section 8 limitation is applicable where ever the returns are filed, if returns are not filed then section 8(5) has no application. The petitioner is liable to pay entry tax as mandated under section 3 and the petitioner failed to comply with the section 3(3). Any person failing to comply with the provisions of the Act is liable for imposition of penalty under section 15 of the Act. But penalty was deleted since there is no finding of willfulness, but later on it was realized section 15 is nothing to do with "willfulness" and hence the same was cancelled. Further the assessment order dated 05.10.2021 did not discuss non filing of return as mandated under section 3. Moreover, the order dated 05.10.2021 was passed based on the petitioner's representations without any direction from the judicial forum, hence pre-revision notice dated 21.12.2021 was issued. The petitioner is having alternative remedy of statutory appeal. Since the petitioner is liable to pay 100% tax before filing the statutory appeal, in order to avoid the same, the present writ petition is filed. Hence the respondents prayed to dismiss the writ petition. 4. The first contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing 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. 5. The aforesaid judgment is followed in subsequent judgment in W.P.No. 13631 of 2005 dated 27.07.2016 (M/s.Vishnu Enterprises). The Hon'ble Division Bench in W.A.(MD)No.332 of 2007 vide order dated 12.04.2022 has also followed and the same is extracted hereunder: "7. We do not think it will be proper for us now to relegate the appellant to the alternative remedy available under the Act. No doubt, the Writ Court had dismissed the writ petition directing the appellant/petitioner to avail the alternative remedy, but this writ appeal has been entertained by this Court and it has been pending for nearly 15 years. Hence, we do not think we will be justified in relegating the appellant/petitioner to the alternative remedy under the Act. The Division Bench in Sri Balakrishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of recovery of entry tax. 9. Therefore, we are of the opinion that the respondent was not justified in demanding entry tax from the appellant. ....'' 9. This judgment of the Division Bench was followed by this Court in W.P.No.13631 of 2005, dated 27.07.2016 wherein, the Hon'ble Mr.Justice T.S.SIVAGNANAM, held that the assessing authority has no power to assess and demand tax in the absence of a return being filed by an importer. In view of the abovesaid conclusion, we do not deem it necessary to go into the question whether the mobile crane is a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988. 10. In view of the above categoric pronouncement of this Court, the Writ Appeal succeeds and the same is, therefore, allowed. The order of the learned Single Judge made in W.P(MD)No.3643 of 2005, dated 21.06.2007, dismissing the writ petition directing the appellant to take recourse to the alternative remedy available under the enactment, is set aside. The writ petition will stand allowed." 6. The petitioner also relied on the judgment rendered in another writ appeal in W.A.(MD)No.442, 452 and 453 of 2022 vide order dated 10.04.2023 and the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved and held that limitation apply to the cases where return has been filed by the assessee and the period of limitation not applicable, where no return is filed by the assessee. 11.6. Therefore, submission on behalf of the petitioner that impugned notice and / or assessment order are barred by limitation as provided under Section 8 of the Act is concerned, cannot be accepted." 8. The above referred judgments had referred to the Kerala High Court judgment rendered in A.Kunhikoya Thangal and has held that limitation prescribed thereunder is applicable only if the return is filed and limitation not applicable if return not filed. However, in Balakrishna's case the Hon'ble High Court of Madras had held that, "It is trite that in case the words used in a taxation statute are plain and unambiguous they have to be interpreted in such a manner so as to give full effect to the wording of the statute. It is not permissible for including something in a taxing statute so as to give it a different meaning. In the absence of a provision enabling the tax collector to levy tax it would be impermissible to levy tax even if equity is in favour of the State. Therefore, there should be an expr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
