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TMI Blog2022 (11) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... o not think we will be justified in relegating the appellant/petitioner to the alternative remedy under the Act. The Division Bench in SRI BALAKRISHNA TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [ 2009 (2) TMI 787 - MADRAS HIGH COURT] had held that there is no provision in the Entry Tax Act, for assessing a person who fails to furnish a return under Section 7 of the Act. The appellant has admittedly not filed a return as required under Section 7 of the Act, on the ground that the mobile crane is not a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988. The vehicle was imported in the year 2001 and the notice impugned was issued in the year 2005. The order of the learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it that the issue that has been raised in the writ petition is covered by a decision of the Division Bench of this Court in Sri Balakrishna Transport vs. Commercial Tax Officer, Tambaram I Assessment Circle, Chennai, reported in [2010] 28 VST 356 (Mad). According to the learned counsel, the authority has no right to issue a notice under Section 8 of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990, in the absence of a return filed by the appellant. He would further contend that the vehicle in question is not a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988, since it is a vehicle which is adopted for usage within an enclosed area. 5. Contending contra, Mr.V.Nirmal Kumar, learned Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return as required under Section 7 of the Act, on the ground that the mobile crane is not a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988. The vehicle was imported in the year 2001 and the notice impugned was issued in the year 2005. 8. The Division Bench in Sri Balakrishna Transport's case (referred to supra), dealing with a similar situation, had observed as follows:- ''7. Though section 7 requires every person liable to pay tax under the Entry Tax Act to file a return to the designated authority, there is no specific provision in the Entry Tax Act for assessing a person who has failed to furnish the return. Section 8 of the Act provides for assessment on the basis of the return furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent was not justified in demanding entry tax from the appellant. ....'' 9. This judgment of the Division Bench was followed by this Court in W.P.No.13631 of 2005, dated 27.07.2016 wherein, the Hon'ble Mr.Justice T.S.SIVAGNANAM, held that the assessing authority has no power to assess and demand tax in the absence of a return being filed by an importer. In view of the abovesaid conclusion, we do not deem it necessary to go into the question whether the mobile crane is a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988. 10. In view of the above categoric pronouncement of this Court, the Writ Appeal succeeds and the same is, therefore, allowed. The order of the learned Single Judge mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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