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TMI Blog1995 (11) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under section 13 of the M.P. Entry Tax Act read with section 38(1) of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act of 1958") and deposited 50 per cent of the balance demand. A notice was given to the assessee by the Appellate Deputy Commissioner of Sales Tax, Raipur, as to why his appeal may not be summarily rejected as he has not deposited 75 per cent of the balance amount. The assessee/non-applicant in his reply to show cause notice, contended that he was only liable to deposit 25 per cent of the balance amount. The Appellate Deputy Commissioner of Sales Tax, Raipur, without hearing the assessee, dismissed the appeal summarily under rule 58 of the M.P. General Sales Tax Rules, 1959, read with section 13 of the Entry Tax Act, vide order dated July 20, 1981. 3.. Aggrieved against the order dated July 20, 1981, the assessee/nonapplicant preferred second appeal before the Board of Revenue, Gwalior, on the ground that he was not heard when his first appeal was rejected and secondly, he should have been given time to deposit the balance amount. 4.. The contention of the learned counsel for the applicant/Revenue before the Board of Revenue was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections as so incorporated in this Act. " It may be relevant to mention here that section 7 of the Act has not been made applicable at all. 7.. Shri S.K. Seth, learned counsel for the applicant/Revenue, has contended that it is true that section 7 of the Act has not been made applicable as such, but by implication section 7 of the Act, shall be deemed to be applicable. Section 7 of the Act reads as under: "Section 7: Levy of purchase tax.-(1) Every dealer who in the course of his business purchases any goods specified in Schedule II- (i) from a registered dealer in circumstances in which no tax under subsection (1) of section 6 is payable by that registered dealer on the sale price of such goods; or (ii) from any other person; shall be liable to pay tax on the purchase price of such goods, if after such purchase the goods are not sold either within the State or in the course of interState trade or commerce but are- (a) sold or disposed of otherwise; or (b) used or consumed in the manufacture or processing of other goods or used or consumed otherwise; such tax shall be levied at the same rate at which tax under sub-section?(1) of section 6 would have been levied on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered dealer for the purpose of sections 17, 18, 19, 22, 22-A and 26 and is under obligation to file returns under section 17 of the Act and can be assessed under section 18 of the Act. Therefore, for all purposes, he shall be deemed to be a registered dealer. Learned counsel emphasised that the words "deemed dealer" shall mean that though section 7 of the Act has not been specifically made applicable under section 13 of the Entry Tax Act, but still it shall be deemed to have been adopted by virtue of sub-section (4) of section 7 of the Act. 9.. Learned counsel for the applicant/Revenue has made a reference of subsection (2) of section 2 of the Entry Tax Act that all those expressions, other than expression "goods" and "sale" which are used but not defined in this Act and that are defined in the Sales Tax Act, shall have the meanings assigned to them in that Act. Sub-section (2) of section 2 of the Entry Tax Act reads as under: "Section 2(2): All those expressions, other than expression 'goods' and 'sale' which are used but are not defined in this Act and are defined in the Sales Tax Act shall have the meanings assigned to them in that Act." Learned counsel has invited our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent which goes against the intended purpose of the enactment. Section 13 of the Entry Tax Act specifically provided that sections 3, 7-A, 17, 18, 19,......shall be applicable mutatis mutandis in this Act. In fact, in this Entry Tax Act, some of the provisions of the Sales Tax Act has been made applicable and not all the provisions. It was further ordained that these provisions shall mutatis mutandis apply to the provisions of the Entry Tax Act. Therefore, it was rightly contended that only those provisions which have been made applicable should be applied and not which are not made applicable. The Legislature in their wisdom have deliberately omitted the reference of section 7 of the Act for the reason that section 7 deals with the levy of purchase tax and the purchase tax cannot be made applicable to the Entry Tax Act because the Entry Tax Act is covered under entry 52 of List II of the Seventh Schedule to the Constitution of India. Entry 52 of List II of the Seventh Schedule to the Constitution of India only deals with the taxes on the entry of goods into a local area for consumption, use or sale therein, whereas entry 54 of List II of the Seventh Schedule deals with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve taken. In that case, the honourable Bhagwati,J., agreeing with the view of honourable Sen and honourable Venkataramiah, JJ., observed with reference to the Bombay Sales Tax Act: "........The question then would be: if the dealer is not registered under the Bombay Act, how to recover the tax from him? The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for the recovery of tax from him. Section 4, sub-section (2), therefore enacts that every dealer who is liable to pay tax under sub-section (1) shall, for the purposes of sections 32 to 38 and 46 to 48 be deemed to be a registered dealer. Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub-section (1) of section 4 that an artificial fiction is created deeming the dealer to be a registered dealer, that is, a dealer registered under section 22 of the Bombay Act. This legal fiction is created for a specific purpose and it is limited by the terms of sub-section (2) of section 4 and it cannot be projected in section 8(ii). Section 4 has, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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