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TMI Blog2002 (2) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... officer in-charge of the checkpost; that after imposing the entry tax on February 20, 1990, by Ordinance No. 1 of 1990 (subsequently replaced by Act 13 of 1990), the registering officer under the Motor Vehicles Act insisted on obtaining a certificate from the Commercial Taxes Department either to the effect of the payment of the entry tax or that the vehicles did not attract the entry tax at all; that the Commissioner, Commercial Taxes, did not issue such certificate for the two vehicles in question, but collected a sum of Rs. 17,522 as per his receipt No. 940103/ 30-3-1990 as tax under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 (Act 13 of 1990) (hereinafter referred to as "the Act") which came into force on February 20, 1990 only; that the petitioner is not liable to pay the tax since the chassis entered into the State of Tamil Nadu from Pondicherry on February 19, 1990 itself; that there had been no demand notice nor any assessment proceedings for the collection of the said amount as tax; that the petitioner filed the returns on May 22, 1990 in form No. I as contemplated under rules 3 and 4 of the Rules framed under the said Act; that by the directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At this juncture, the learned counsel would point out that the assessing authority is the Commercial Tax Officer, exercising powers under section 8 of the Act pertaining to the assessment and the revisional authority under section 14 of the Act is the Commissioner and when the assessing authority completes his exercises which is quasi-judicial function, the Commissioner, being the superior authority under the Act, has no powers to give direction to the assessing authority and would cite the following judgments rendered respectively in: (i) [1958] 9 STC 428 (SC) (Mahadayal Premchandra v. Commercial Tax Officer); (ii) [1962] 46 ITR 152 (Punj) (S. Sewa Singh Gill v. Commissioner of Income-tax, New Delhi); (iii) [1978] 115 ITR 323 (Cal) [Income-tax Officer v. Eastern Scales (Pvt.) Ltd.]; (iv) [2000] 119 STC 61 (SC) (State of West Bengal v. Md. Khalil). 5. So far as the first judgment cited above is concerned, in a case where the Commercial Tax Officer made his assessment on instructions and advice of the superior obtained behind the back of the assessee, it has been held that "the procedure adopted by the officer was contrary to the principles of natural justice and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to the party disputing the conclusion to rebut the same. Presumptions may be of fact or of law. A presumption is an inference sanctioned by law which does not logically or necessarily follow from the proved facts. For raising a presumption..., there must be a specific provision in the Entry Tax Act. No provision in the said Act is brought to our notice which may enable the authority to raise the presumption that a possessor of the specified goods, who fails to produce before the authority his accounts register or document on being required to do so, has imported the goods into the Calcutta Metropolitan area without payment of tax." On such arguments the learned counsel for the petitioner would pray to allow the writ petition to the prayer extracted supra. 9.. No counter has been filed but the learned counsel appearing on behalf of the respondent would submit that even according to the return filed by the petitioner under section 3 of the Act, the tax due to the respondent-department is Rs. 36,842 as per rule 4 of the said Act; that originally, the petitioner was granted exemption by the Special Commissioner and the Commissioner of Commercial Taxes as per the authority's ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject?" 12.. The firm case of the petitioner, on facts, is that these two vehicles belonging to him passed through Tamil Nadu on February 19, 1990, i.e., one day prior to the coming into being of the Act on February 20, 1990. No doubt, an order had been passed by the appellate authority, the Special Commissioner and the Commissioner of Commercial Taxes in her proceeding L. Dis. Acts Cell IV/30183/90, dated March 16, 1990 thereby informing the petitioner that the truck chassis No. ALEP 242134 and engine No. ALEP 119258 had entered into the State of Tamil Nadu prior to February 20, 1990 and hence no liability under the Act would arise in the said case. However, on a general instruction given by the same Commissioner to revise the assessment as per the clarification issued in the Act dated March 19, 1990, which finds place in the impugned order, to all the authorities below, the authority below is said to have gone into the facts and has passed the impugned order, which has been seriously taken note of by the learned counsel appearing for the petitioner and in the light of the decided judgments by other courts, such as Calcutta, Delhi, Kerala, etc., which have held to suit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgments cited by the learned counsel for the petitioner, the last judgment, so far as forming the presumption is concerned, it is not applicable to the case in hand since it is not on presumption the impugned order has been passed but on facts ascertained on verification and therefore the ratio held in this judgment cannot be applied to the case in hand. 14. Regarding the other three judgments also, neither any assessment has been made on instructions or advice of the superiors obtained behind the back of the assessee as it has been held in the first judgment nor has the Commissioner of Income-tax directed the Income-tax Officer to make draft assessment order and got it approved by him as in the second judgment cited. The appellate authority herein has not acted in so far as the passing of the impugned order nor even the authority, who made the order, made rectification at the behest of the superior officer pertaining to a legal position as it has been in the said case regarding section 119(3) of the Income-tax Act. Therefore, though the general legal proposition that the authority has to pass orders in exercise of his powers as a judicial or quasi judicial authority in app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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