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TMI Blog2021 (4) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods Act, 1979 can be treated as issued under Section 6 of the Act? - HELD THAT:- In the present case, it is not that the returns have not been filed or the details not furnished. The authorities had called upon the petitioner to provide further details in respect of the declaration furnished and have also issued a proposition notice. Thus, it cannot be said that any notice under Section 6 of the Act had been issued for escaped assessment bringing the case of the petitioner under the fold of Section 6 - Section 6 would not attracted in the present case. At least until the amendment to Entry 5 is made, the respondent officer could not have changed the stand to impose any entry tax on the goods of the petitioner since it is the respondents themselves who had indicated the goods of the petitioner not amenable to such tax. The present issue being one relating to a period prior to coming into force of the amendment, the effect of the amendment is not required to be considered in the present matter. Whether in the present case, a notice issued under Section 5(4) on 02.01.2017 was barred by period of limitation fixed under Section 5(6) of the Act and if so, whether the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry Tax Act ). 2.6. The petitioners contends that in terms of Section 2(A)(1) of the Entry Tax Act, the said unmanufactured tobacco is exempted from levy of entry tax on account of the same being agricultural produce. 2.7. In terms of Sub-Section 1 to Section 3 of the Entry Tax Act, the State Government had specified goods listed in First Schedule of the Entry Tax Act for levy of Entry Tax at the rate not exceeding 5%. A notification came to be issued on 30.03.2002 specifying Tabacco products of all descriptions including cigarettes, cigars, churuts, zarda, quimam, etc but excluding snuff, ghutka, beedies is liable for entry tax. 2.8. Subsequent thereto, the authority for Clarification and Advance Rulings had issued an order dated 02.09.2003 under Section 12 (C) of the Entry Tax Act clarifying that the applicant therein who was manufacturing Ghai Chhap Zarda tobacco , was exempted from entry tax since tobacco is an agricultural produce. 2.9. The said clarification was followed by the officers of the respondent-department from that time and there was no levy made on Entry Tax on unmanufactured tobacco. 2.10. The petitioners contend that they purchased unmanufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 30.03.2002 specifying Tabacco products of all descriptions including cigarettes, cigars, churuts, zarda, quimam, etc but excluding snuff, ghutka, beedies . 2.16. Respondent No.3-Deputy Commissioner of Commercial Tax also passed rectification orders under Section 17 of the Entry Tax Act approving the aforesaid assessments without issuing any notice to the petitioner by order dated 05.05.2018. 2.17. The petitioners contend that the entire stand of the respondents are completely malafide, predecided. They have in a malafide manner changed the entire manner of consideration of the aspect of the petitioner. The mode and methodology followed from the year 2003 has been suddenly changed. The same is a fraud of power and therefore, there would be no purpose served by filing an appeal in terms of Section 13 of the Entry Tax Act and hence, the petitioner has approached this Court to exercise its powers under Articles 226 and 227 of the Constitution of India. 3. Sri. M. Thirumalesh, learned counsel for the petitioners would submit as under: 3.1. That the product of the petitioners is unmanufactured tobacco which is an agricultural produce, there being no process which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came into existence with effect from 02.10.2013 as per the said notification itself. Therefore, he submits that this amendment is only prospective in nature and not applicable to the petitioners prior to that date. 3.8. He further submits that irrespective of the above, the consistent interpretation which has been given to entry tabacco products of all descriptions including cigarettes, cigars, churuts, zarda, quimam, etc but excluding snuff is such that that unmanufactured tobacco was not included in the said definition and there was no entry tax imposed on unmanufactured tobacco including that traded upon by the Petitioners. 3.9. By way of reassessment now done, the entry tax is sought to be levied retrospectively to unmanufactured tobacco even though consistently it has been the practice of the department that unmanufactured tobacco was not part of said entry. He further submits that if at all the same has been already included in the said definition, there was no need to bring about the amendment inserting a new clause unmanufactured tobacco in sealed container . 3.10. He relies on the decision of the Hon ble Apex Court in the case of Ponds India Limited (Merged w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the year 2012-13, it should have been done by 31.03.2015. 3.16. The same not having been done, notice came to be issued under Section 5(4) of the Entry Tax Act on 02.01.2017 after the period of limitation even for the last assessment year 2012-13. Therefore, the same is barred by limitation and is required to be quashed. 4. Sri. Mallikarjun Sahukar, learned HCGP on the other hand would contend that 4.1. Section 13(1)(ii) of the Entry Tax Act, provides for an alternative remedy inasmuch as the order of assessment having been passed by the Assistant Commissioner of Commercial Taxes or a Deputy Commissioner, the petitioners ought to have approached the Joint Commissioner on appeal. The same not having been done and the petitioners having approached this Court, the Writ Petitions are not maintainable and ought to be dismissed on this ground. 4.2. When there is an inclusive definition in terms of Entry 5 wherein it states that the Tabacco products of all descriptions including cigarettes, cigars, churuts, zarda, quimam, etc but excluding snuff, ghutka, beedies , the same would mean and include all tobacco products except snuff which has been excluded, manufactured or unma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is on the basis of the said statute that an assessee and in this case a dealer could plan its business activities taking into consideration the applicable taxes. 7.2. Hence, I am of the considered opinion that the amendment to Entry 5 brought about on 01.10.2013 is prospective in nature and would come into effect only from 02.10.2013. 8. Answer to Point No.2: Whether a notice under Section 5(4) of the Karnataka Tax on Entry of Goods Act, 1979 can be treated as issued under Section 6 of the Act? 8.1. The applicability of Section 5(4) and Section 6 of the Entry Tax Act is in different context and different sphere. A notice under Section 5 (4) is issued calling upon the dealer to furnish necessary particulars so as to clarify the assessment and complete the assessment. 8.2. Whereas under Section 6 of the Act is for an escaped assessment i.e., where no assessment was made at all. 8.3. In the present case, it is not that the returns have not been filed or the details not furnished. The authorities had called upon the petitioner to provide further details in respect of the declaration furnished and have also issued a proposition notice. Thus, it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Advance Rulings is only applicable to Ghaichap Zarda and not to the product of the petitioner. Whereas on the other hand he contends that clarification issued in Sri. Vittal A. Naik is applicable to all manufacturers. Such a contradictory stand can not be taken by the authorities more so the taxation authorities. If clarification in Sri. Vittal A. Naik s case is applicable to all dealers so would clarification in Ghaichap Zarda matter. If that be so, the clarification issued in Ghaichap Zarda matter cannot be changed in Sri.Vittal A.Naik matter without there being any material change and/or change in circumstances and or a change in law. 10.2. The petitioner succeeding on the above points, the other points urged by Sri.Thirumalesh, learned counsel for the petitioner are not being considered in the present matter and are left open to be considered in a suitable matter in future. 11. Answer to Point No.5: What Order? 11.1. In the result I pass the following: ORDER 11.1.1. Writ Petitions are allowed. 11.1.2. The assessment and rectification orders passed by respondent No.3 for assessment years 2008-09 to 2011-12 in W.P.Nos.202323 and 201286 of 2018 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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