Madras High Court
M/S.Sree Pandeeswari Timbers & ... vs The Commercial Tax Officer (Fac) on 12 April, 2022
W.A(MD)No.332 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.04.2022
(Reserved on 06.04.2022)
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.A(MD)No.332 of 2007
M/s.Sree Pandeeswari Timbers & Saw Mill,
No.18-A, Shencottai Road,
Tenkasi. ... Appellant
vs.
The Commercial Tax Officer (FAC),
Sales Tax Office,
Tenkasi. ... Respondent
Appeal filed under Clause 15 of Letters Patent, against the order dated
21.06.2007 in W.P(MD)No.3643 of 2005.
For Appellant : Mr.R.D.Ganesan
For Respondent : Mr.V.Nirmal Kumar
Government Advocate
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Challenge in this writ appeal is to the order of the learned single
Judge made in W.P(MD)No.3643 of 2005, dated 21.06.2007, in and by which, the
writ petition filed by the appellant/writ petitioner questioning a notice issued by
the respondent demanding entry tax and penalty, was dismissed.
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2. The appellant is a Timber merchant and for the purposes of its
business, it had purchased an Escorts Mobile Crane for Rs.10,43,536/- from
M/s.Escort Construction Equipments Ltd., on 26.02.2001. The appellant had also
challenged the provisions of the Tamil Nadu Tax on Entry of Motor Vehicles into
Local Areas Act, 1990. The challenge failed. Simultaneously, the
appellant/petitioner launched the present proceedings seeking to quash the
demand notice. The Writ Court had dismissed the writ petition on the ground of
availability of alternative remedy. Hence, this writ appeal.
3. We have heard Mr.R.D.Ganesan, learned counsel appearing for the
appellant/petitioner and Mr.V.Nirmal Kumar, learned Government Advocate
appearing for the respondent.
4. Mr.R.D.Ganesan learned counsel appearing for the appellant would
submit that the issue that has been raised in the writ petition is covered by a
decision of the Division Bench of this Court in Sri Balakrishna Transport vs.
Commercial Tax Officer, Tambaram I Assessment Circle, Chennai, reported
in [2010] 28 VST 356 (Mad). According to the learned counsel, the authority
has no right to issue a notice under Section 8 of the Tamil Nadu Tax on Entry of
Motor Vehicles into Local Areas Act, 1990, in the absence of a return filed by the
appellant. He would further contend that the vehicle in question is not a motor
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W.A(MD)No.332 of 2007
vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988, since it is
a vehicle which is adopted for usage within an enclosed area.
5. Contending contra, Mr.V.Nirmal Kumar, learned Government
Advocate appearing for the respondent would submit that the Writ Court has
dismissed the writ petition on the ground of availability of alternative remedy and
we should also follow suit. He would further point out that whether the vehicle in
question namely, mobile crane is a motor vehicle or not is no longer res integra
and various High Courts have held that a mobile crane which is adopted for usage
on roads, would be a motor vehicle as defined under Sub-Section 28 of Section 2
of the Motor Vehicles Act, 1988. The learned counsel would also contend that the
demand is justified in view of the fact that the provisions of the Act have been
upheld by the Hon'ble Supreme Court.
6. We have considered the submissions of the counsel on either side.
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.
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W.A(MD)No.332 of 2007
The Division Bench in Sri Balakrishna Transport's case (referred to supra) had
held that there is no provision in the Entry Tax Act, for assessing a person who
fails to furnish a return under Section 7 of the Act. The appellant has admittedly
not filed a return as required under Section 7 of the Act, on the ground that the
mobile crane is not a motor vehicle as defined under Section 2(28) of the Motor
Vehicles Act, 1988. The vehicle was imported in the year 2001 and the notice
impugned was issued in the year 2005.
8. The Division Bench in Sri Balakrishna Transport's case (referred to
supra), dealing with a similar situation, had observed as follows:-
''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 furnished by a person 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.
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W.A(MD)No.332 of 2007
''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 authorising
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
such provision which enables the authority to make an assessment for
the purpose 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
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W.A(MD)No.332 of 2007
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.
(R.S.M., J.) (N.S.K., J.)
12.04.2022
Index : Yes / No
bala
To
The Commercial Tax Officer (FAC),
Sales Tax Office,
Tenkasi.
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W.A(MD)No.332 of 2007
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
W.A(MD)No.332 of 2007
DATED : 12.04.2022
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