TMI Blog2023 (11) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities to take action for not filing returns. This Court is of the considered opinion that the Balakrishna s case has more precedential value. This Court is of the considered opinion that the three years limitation is applicable, even if return is not filed. This Court is of the considered opinion that the impugned order is liable to be quashed and accordingly quashed - the writ petition is allowed. - Honourable Mrs.Justice S.Srimathy For the Petitioner : Mr.R.D.Ganesan For the Respondent : Mr.R.Suresh Kumar, Additional Government Pleader ORDER The Writ Petition is filed to quash the order dated 21.07.2022 as it is barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 and hence it is unlawful and without jurisdiction. 2. The writ petitioner is a company had purchased imported Audi Car from Bangalore vide Invoice No.JM/HSS/001/ 2007-2008 dated 31.07.2007. Based on the verification of records the respondent had earlier passed order dated 24.12.2019 levying entry Tax of Rs. 2,80,370/- as per the proposals made out vide notice dated 19.08.2019 for the assessment year 2007-08, on the purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 10.04.2023. The respondent is also not empowered to make an assessment under section 8 of the Act in the case of failure to file returns as required under section 7. The respondent has no power to make revision of assessment again and again, once the issue is decided as held in W.P.(MD)No.10647 to 10649 of 2016 dated 08.08.2019 (M/s.Bhavani Saw Mill), wherein it is held there is no jurisdiction to issue second revision notice and third revision notice is beyond any law. Hence the impugned order is without any authority of law and jurisdiction. Penalty is not leviable for non-compliance of the provision under bonafide circumstances as held in Hindustan Steel Ltd. reported in 25 CTC 211. Hence the petitioner prays to set aside the revision order as well as the impugned order. 3. The respondent had filed counter stating the validity of the Tamil Nadu Tax on entry of Motor Vehicles into Local Areas Act, 1990 was upheld by the Hon ble Supreme Court and it also held that the same is applicable for imported vehicles and in the meanwhile the assessment orders were passed. The period during the pendency of litigation ought to be excluded for calculating limitation. If any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the purchase of Audi car, then the period of limitation ought to be calculated from the date on which it was brought to the knowledge of the respondent, in such circumstances the present assessment order is within the limitation. It is an admitted fact that the petitioner did not file the returns. But the claim of the petitioner, even if the petitioner has not filed returns, then also the limitation is only three years from the date of purchase and not from the date of knowledge to the respondent and hence the respondent is not having power to assess and for which the Learned Counsel appearing for the petitioner relied on the judgment passed by Hon ble Division Bench in the case of Sri Balakrishna Transport Vs. Commercial Tax Officer, Tambaram-I Assessment Circle, Chennai reported in 2010 28 VST 356 (Mad) . The relevant portion is extracted hereunder: ''7. Though Section 7 requires every person liable to pay tax under the Entry Tax Act to file a return to the designated authority, there is no specific provision in the Entry Tax Act for assessing a person who has failed to furnish the return. Section 8 of the Act provides for assessment on the basis of the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ''8. ... When there is no specific provision in the Entry Tax Act for assessing a person who fails to furnish returns, the respondent was not entitled to make an assessment after a considerable point of time. 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 express provision authorizing the assessing authority to collect tax from an importer, who failed to file returns as provided under section 7 of the Act. However, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. Moreover, the aforesaid judgments are against the Balakrishna s case. On perusal of the M.H.Khanusiya s case and Hasti Petrochemicals case the Hon ble Court had proceeded the filing of return is mandatory and limitation is applicable. If return is not filed then the prescribed limitation is not applicable and the relevant portion is extracted hereunder: .Therefore, the limitation for assessment as provided under sub-section(5) of Section 8 shall be three years from the last date prescribed for furnishing the return, provided the importer has filed the return. In case, the importer has not filed the return at all, sub-section(5) of Section 8 shall not be applicable. We are fortified with the aforesaid view by the decision of the Kerala High Court in the case of A. Kunhikoya Thangal (supra). The Kerala High Court in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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