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2018 (8) TMI 70 - HC - VAT and Sales TaxDemand of entry tax to be deposited before assessment order - - Section 8(5) of the Entry Tax Act - Recovery of Entry Tax and penalty - purchase of Hydraulic Excavator - It is the case on behalf of the petitioner that thereafter without passing any assessment order, the respondent authorities have issued the impugned demand notice to the petitioner on 20.02.2016 asking the petitioner to deposit entry tax on the purchase made on 29.09.2006 along with penal interest and penalty. Held that - There shall be levied and collected entry of specified goods into local area, a tax on the purchase value thereof at such rates as may be fixed by the State Government by Notification in the Official Gazette but not exceeding the maximum rates specified in column no.3 of schedule. It further provides that such entry tax shall be in addition to the tax levied and collected, as octroi by a Municipal Corporations or any other local authority. It also further provides that amount of tax leviable, shall, subject to such conditions as may be prescribed, be reduced to the extent of the amount of tax paid, if any, under the law relating to Sales Tax as may be in force in any other State or Union Territory by an importer who has purchased the specified goods in that State. It also further provides that amount of tax leviable under the Entry Tax Act, shall, subject to such conditions as may be prescribed, be reduced to the extent of the amount of tax paid, if any, under the Central Sales Tax Act, 1956 on the purchase of the specified goods in the course of inter State trade or commerce. As per sub-section( 5) of Section 8, 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 furnishing of returns of the particular period. It further provides that if for any reason, such order is not made within the period aforesaid, then the return so furnished shall be deemed to have been accepted as correct and complete for assessing the tax due from such person. As per the scheme of the Act and as per Section 10, a person liable to pay the tax, shall before furnishing return as required by sub-section( 1) of Section 7, first pay into the Government treasury in the prescribed manner, the whole of the amount of tax due from him according to such return - In the present case, the importer is required to furnish return cum challan in Form 1, within three days of entry of specified goods into local area in case the importer is not registered dealer and in case importer is registered dealer shall furnish return cum challan under said Rule within a period of 21 days. 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. The submission 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. So far as submission on behalf of the petitioner that as they were of the opinion and they believed that the goods which were imported, were not specified goods and therefore, not liable to pay entry tax and therefore, they were required to file return and therefore, did not file the return is concerned, the aforesaid submission is contrary to the scheme of the Act and Rules - the submission on behalf of the petitioner that unless and until assessment order is passed and the amount of tax is determined there is no question of making payment of tax is concerned, the aforesaid submission is also contrary to the scheme of the Act and Rules. While making payment of entry tax as demanded, the petitioner shall be entitled to deduction in tax liability as provided under Section 4 of the Act. Principles of Natural Justice - Held that - It appears that assessment order dated 13.06.2016 has been passed in haste and therefore, same can be said to be in principles of natural justice as no sufficient opportunity has been given to the petitioner. Therefore, the matter is required to be remanded to the appropriate authority to pass fresh order in accordance with law and on merits after giving opportunity to the petitioner on all aspects - matter on remand. Application allowed in part.
Issues Involved:
1. Legality of the impugned demand notices and assessment orders under the Entry Tax Act. 2. Applicability of the limitation period for assessment under Section 8(5) of the Entry Tax Act. 3. Requirement of filing returns under the Entry Tax Act. 4. Classification of Hydraulic Excavators as "specified goods" under the Entry Tax Act. 5. Compliance with principles of natural justice in the assessment process. Issue-wise Detailed Analysis: 1. Legality of the Impugned Demand Notices and Assessment Orders: The petitioners challenged the demand notices and assessment orders on the grounds that they were barred by limitation under Section 8(5) of the Entry Tax Act and that the goods in question were not "specified goods" subject to entry tax. The court observed that the scheme of the Entry Tax Act requires the importer to file a return-cum-challan and pay the tax within the prescribed period. If the importer fails to file the return, the limitation period under Section 8(5) does not apply. The court upheld the demand notices, stating that the authorities are empowered to issue such notices even if the importer believes the goods are not specified goods. 2. Applicability of the Limitation Period for Assessment: The petitioners argued that the assessment orders were time-barred as they were issued beyond the three-year limitation period prescribed under Section 8(5) of the Entry Tax Act. The court clarified that the limitation period applies only if the importer has filed the return. In cases where no return is filed, the limitation period does not apply. The court relied on the decision of the Kerala High Court in A. Kunhikoya Thangal vs. State of Kerala, which held that the limitation period is not applicable where no return is filed by the assessee. 3. Requirement of Filing Returns: The petitioners contended that they were not required to file returns as they believed the goods were not specified goods. The court rejected this argument, stating that as per the scheme of the Act, every importer must file a return-cum-challan and pay the tax, regardless of their belief about the classification of the goods. The court emphasized that the determination of whether the goods are specified goods should be made during the assessment process, provided the return is filed. 4. Classification of Hydraulic Excavators as "Specified Goods": The petitioners argued that hydraulic excavators were not specified goods and hence not liable for entry tax. The court noted that this issue should be addressed during the assessment proceedings, provided the petitioner files the return-cum-challan and responds to the assessment notice. The court directed that the classification of the goods be considered in accordance with the law during the assessment process. 5. Compliance with Principles of Natural Justice: In Special Civil Application No. 5379 of 2016, the petitioner argued that the assessment order was passed in haste and without providing sufficient opportunity to present their case, thereby violating the principles of natural justice. The court found merit in this argument, noting that the assessment order was passed without giving adequate time for the petitioner to respond. The court set aside the assessment order and remanded the matter to the appropriate authority for fresh consideration, ensuring that the petitioner is given a reasonable opportunity to be heard. Conclusion: Special Civil Application No. 7844 of 2016 was dismissed, upholding the demand notices. Special Civil Application No. 5379 of 2016 was partly allowed, setting aside the impugned assessment order and remanding the matter for fresh assessment with proper opportunity for the petitioner to present their case. The court emphasized the requirement for importers to file returns and pay taxes as per the scheme of the Entry Tax Act, regardless of their belief about the classification of the goods.
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