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TMI Blog2010 (7) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... on, be it "five years" from the end of the period 2003-04 or be it "five years" backward from the date of the issuance of the impugned notice vide annexure 4, the initiation of the reassessment proceeding cannot be held to be barred by limitation. Appeal dismissed. - W.P. (C) No. 14629 of 2008 - - - Dated:- 15-7-2010 - DAS B.P. AND DASH C.R., JJ. C.R. DASH J. Section 9 of the Orissa Entry Tax Act, as it stood before amendment by the Orissa Entry Tax (Amendment) Act, 2005 (referred to as, the Act , in short) provided a limitation of three years for reassessment of escaped turnover of a dealer. By the aforesaid amendment in question in the year 2005 section 9 of the Act was substituted by section 10, in which the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04. The petitioner filed objection vide annexure 5. The petitioner in this writ petition impugns the action of the opposite party in issuing notice in form E32 under rule 15D of the Orissa Entry Tax Rules vide annexure 4 on the ground that the provisions of section 10 of the Act read with rule 15D of the Rules having come into force with effect from October 19, 2005, the notice in question vide annexure 4 should not have been issued to the petitioner as by the time of issuance of the impugned notice (annexure 4 dated July 17, 2008) the period of limitation of three years prescribed under section 9 of the Act towards initiation for reassessment proceeding had already expired. It is the further case of the petitioner that the amended provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1965 SC 241, Mysore Rolling Mills (P) Ltd. v. Collector of Central Excise, Belgaum AIR 1987 SC 1488 and Additional Commissioner (Legal) v. Jyoti Traders [1999] 112 STC 277 (SC); AIR 1999 SC 526. Having heard the parties at length, we are of the view that no authority need be cited for the proposition that rule of strict construction of a taxing statute applies primarily to charging provisions in a taxing statute and has no application to a provision not creating a charge, but laying down the machinery for its calculation or procedure for its collection, and such machinery provisions have to be construed by the ordinary rule of construction. One of the important consideration in construing a machinery provision is that it should be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions cannot be applied retrospectively. Coming to the fact of the present case, it is beneficial to reproduce the relevant sections of the Act for a ready reference. Section 10 of the Act has been substituted in place of section 9 by the Orissa Entry Tax (Amendment) Act, 2005. Prior to the amendment section 9 stood thus: 9. Payment of tax for entry of goods escaping assessment. (1) Where for any reason all or any of the Scheduled goods brought by a dealer has escaped assessment to tax, the assessing authority may subject to the provisions of sub-section (3) at any time within a period of three years from the expiry of the year to which the tax relates proceed to assess to the best of his judgment the tax payable on the entry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd after making such enquiry as he considers necessary and after giving the dealer a reasonable opportunity of being heard, proceed to assess the dealer accordingly. (2) If the assessing authority is satisfied that the escapement is without any reasonable cause, he may direct the dealer to pay in addition to the tax assessed under sub-section (1), by way of penalty, a sum equal to twice the amount of tax additionally assessed under this section. (3) Where any order passed by the assessing authority in respect of a dealer for any period is found to be erroneous or prejudicial to the interest of Revenue consequent to, or in the light of, any judgment or order of any court or Tribunal, which has become final and binding, then, notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the rule is invoked, it has got to cover a period up to five years preceding the date of issuance of the notice. In similar situation the honourable Supreme Court in the case of Additional Commissioner (Legal) v. Jyoti Traders [1999] 112 STC 277; AIR 1999 SC 526, on consideration of section 21 and different provisions of the U.P. Trade Tax Act, 1948, held that after coming of the amendment into force providing a period of limitation of eight years, the assessing authority has every right to reopen the assessment within eight years preceding the date of issuance of the notice irrespective of the fact, whether the period of four years under the old law had expired or not. The impugned proviso in the aforesaid case was inserted to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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