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2022 (11) TMI 996 - HC - VAT and Sales TaxMaintainability of petition - availability of alternative remedy of appeal - Levy of Entry tax with penalty - motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988 or not - HELD THAT - 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 TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI 2009 (2) TMI 787 - MADRAS HIGH COURT 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. The order of the learned Single Judge dismissing the writ petition directing the appellant to take recourse to the alternative remedy available under the enactment, is set aside - Appeal allowed.
Issues:
Challenge to order dismissing writ petition questioning entry tax and penalty notice. Analysis: The appellant, a Timber merchant, purchased a mobile crane for business purposes and challenged the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. The writ petition was dismissed by the Writ Court citing the availability of alternative remedy, leading to the current writ appeal. The appellant argued that the authority lacked the right to issue a notice without a filed return and claimed the vehicle was not a motor vehicle under the Motor Vehicles Act, 1988. On the contrary, the respondent contended that the demand was justified as upheld by the Supreme Court and that the vehicle in question qualified as a motor vehicle. The Court acknowledged the long pendency of the case and refused to relegate the appellant to alternative remedies, referencing a Division Bench decision that highlighted the absence of provisions for assessing those who fail to file returns under the Act. The Division Bench decision emphasized the lack of provisions for assessing individuals who do not furnish returns under the Entry Tax Act, preventing the authority from assessing an importer long after the import without specific statutory provisions. The Court noted that plain and unambiguous words in taxation statutes must be interpreted as such, with no room for including additional levies without explicit authorization. The absence of provisions enabling the assessing authority to collect tax from non-filers of returns was highlighted, emphasizing the need for express provisions for such assessments. Following this precedent, the Court held that the respondent was unjustified in demanding entry tax from the appellant, citing previous judgments that reinforced this stance. In alignment with the previous Division Bench decision and subsequent judgments, the Court ruled in favor of the appellant, allowing the writ appeal and setting aside the order of the Single Judge. The dismissal of the writ petition directing the appellant to seek alternative remedies was overturned, and the writ petition was allowed based on the established legal principles and lack of statutory provisions for assessing non-filers of returns under the Act.
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