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TMI Blog2021 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... dent passed an order of assessment, in his proceedings for the assessment year 92-93 and 94-95 to 2001-2002 under the Tamil Nadu General Sales Tax Act, 1959. 4.It is to be noted that in the meanwhile, the Government introduced a new legislation called Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990, which empowers the State Government to collect tax by way of entry tax on the entry of motor vehicles into the local areas for use or sale. 5.Therefore, the petitioner, being the dealer in motor vehicles is liable to pay entry tax under the said enactment. Therefore, as per the rate of entry tax fixed under the legislation, the petitioner has paid entry tax in respect of purchase of two wheeler spares and accessories from outside the State of Tamil Nadu. According to the petitioner, the entry tax during the relevant point of time was 12%, therefore, insofar as the sales is concerned of those vehicles against which entry tax was paid at the 12% rate, the corresponding sales tax was either 11% or 9%, therefore, the said sales tax, payable by the petitioner has to be set off on the basis of the entry tax already paid in respect of those vehicles or accessories concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Track Assessment Circle-III, Chennai, reported in 139 STC 233, that is, W.P.Nos.38111 to 38114 of 2003, dated 16.04.2004. 10. In the said Judgment, the proposition held by the writ Court was that, the entry tax paid by the Assessee as well as the sales tax paid by the same Assessee, in respect of the vehicles or spare parts of motor vehicles concerned, are two different entity of tax, therefore, eventhough set off is permitted, the question of refund of excess of entry tax does not arise, and that can be retained by the Government, because, it is the separate entity, therefore, once, the assessment is completed, the question of refund of the alleged excess entry tax does not arise. 11.Therefore, taking the support from the said decision in the Kivraj motors case, cited supra, the respondent has taken a stand that if the entry tax excess anything paid by the petitioner, that cannot be claimed for refund, therefore, accordingly, the plea of the petitioner was rejected through the impugned order, hence, the learned counsel for the petitioner submits that, the impugned order, whether to be sustained or not can be gone into only on the basis of the said judgment. 12.In this context, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the petitioner, the impugned order does not stand in the legal scrutiny, therefore, it is liable to be interfered with, he contended. 15.Per contra, Mr.R.Suresh Kumar, learned Government Advocate appearing for the respondent, has relied upon the following averments made in the counter affidavit: "On verification of the accounts of the dealer, the assessing officer have already passed order. But the assessing officer have never passed any orders for the refund of any excess amount paid under Entry tax on Motor Vehicles Act 1990 from 1992-1993, 1994-95 to 2001 - 2002. Year Date of order under TNGST Act Date of order under TN-Entry tax on motor vehicles 1992-1993 1/2/1994 1/2/1994 1994-1995 29/3/1996 29/3/1996 1995-1996 7/3/1997 7/3/1997 1996-1997 9/3/1998 9/3/1998 1997-1998 26/3/1999 26/3/1999 1998-1999 31/8/2000 31/8/2000 1999-2000 5/4/2002 5/4/2002 2000-2001 5/4/2002 5/4/2002 2001-2002 24/4/2003 24/4/2003 I humbly submit that the dealer have purchased automobiles, spares and accessories from outside of State of Tamil Nadu and brought into the Local Areas the dealer have paid entry tax as per Section 4 of Tamil Nadu Entry of Motor Vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is the fact that, whether the petitioner has paid any excess tax, which, in turn, make him entitle to get refund of the same, in this aspect, the burden of proof lies only on the Assessee to establish that, he has paid the excess entry tax than the sales tax payable during the relevant period for the said sales, and unless and until, the books of accounts are produced by the Assessee to establish that he has paid the entry tax in excess, the question of claiming any refund does not arise. Therefore, on the basis of the law laid down in the Kivraj Motors case by the writ Appellate Court, which has been heavily relied upon by the assessee, however, even on factual matrix, the petitioner, since has not proved that he has paid the excess entry tax, is not entitled to get any refund. Therefore, the impugned order can be sustained on these reasons assigned, hence, the learned Government Advocate seeks sustainment of the impugned order. 17.I have considered the said rival submissions made by the learned counsel appearing for the parties and have perused the materials placed before this Court. 18.The petitioner is a dealer dealing with motor vehicles and he had to pay the sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and accordingly, they have taken a stand that the payment of sales tax and payment of entry tax are two different separate entities, and therefore, based on the claim anything made by the dealer, that he has paid excess entry tax, after set off, towards the sales tax, still if there is excess entry tax, should it be refunded or not is concerned, it need not be refunded, it can be retained by the Government. 22.However, after the rejection order made through the impugned order by the respondent, the very order of the writ Court in Kivraj Motors case, cited supra, had been appealed in Kivraj Motors v. Assistant Commissioner as referred to above, in W.A.(MD).Nos.3201 and 3204 of 2004, where a Division Bench of this Court, by order, dated 04.02.2010, has passed a detailed order, where at paragraph Nos.11 and 12, they have stated or reiterated, what is the purpose, for which entry tax was brought in and after entry tax was brought in, when Section 7 is to be made applicable for proportionate deduction in liability, whenever the entry tax paid on the higher side vide Section 11 of the Act, shall not be made applicable for refunding such excess entry tax, was considered and decided. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll arrive at a figure as to what was the excess entry tax paid and it is available with the Government, and after finding out the same, the excess entry tax can very well be refunded to the petitioner. 25.In that view of the matter, based on the afore-stated discussions, this Court is inclined to dispose of this writ petition with the following orders: "that the impugned order, for the reasons stated above, since would not stand in the legal scrutiny, is liable to be quashed, accordingly, it is quashed. As a sequel, it is open to the petitioner to produce the books of account to the respondent assessing officer to establish that during the relevant point of time, the petitioner has paid entry tax, which is admittedly 12% and also the corresponding sales tax paid or set off, which is admittedly, either 9% or 11%, therefore, what shall be a difference of the entry tax paid by the petitioner as excess, can be easily calculated by the assessing officer with the help of the petitioner-assessee, and based on which, the ultimate excess entry tax amount available with the hands of the respondent can be refunded to the petitioner. The needful as indicated above shall be undertaken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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