TaxTMI 
TaxTMI 
2004 (4) TMI 545
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....r hearing the petitioner and examining the documents. 3. The writ petition in W.P. No. 38113 of 2003 is filed for the relief of issuance of a writ of certiorari to call for the records in No. Rc.1850/2003/A1 dated December 9, 2003 relating to assessment year 1996-97 and quash the same and direct the first respondent to pass an appropriate order after hearing the petitioner and examining the documents. 4. The writ petition in W.P. No. 38114 of 2003 is filed for the relief of issuance of a writ of certiorari to call for the records in No. Rc.1850/2003/A1 dated December 9, 2003 relating to assessment year 1997-98 and quash the same and direct the first respondent to pass an appropriate order after hearing the petitioner and examining the documents. 5. In all these writ petitions, the assessee assailed the order of the Assistant Commissioner (CT), Fast Track, Assessment Circle III, Chennai 6, dated December 9, 2003 rejecting the application filed under section 55 of the Tamil Nadu General Sales Tax Act, 1959 to rectify the respective assessment orders. 6. The case of the petitioner as seen from the petition filed under section 55 of the TNGST Act, 1959, dated August 8, 2003....
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....Bench of this Court. 9. Except relying on the judgment, learned counsel for the petitioner has not referred to any other statutory provisions either in the TNGST Act or in the Tax on Entry of Motor Vehicles into Local Areas Act, 1990, to sustain its claim for refund of amount. The learned counsel simply submitted that as the division Bench has directed to refund the excess differential amount between the liability of tax under the TNGST Act and liability of the tax under the Entry Tax Act. Hence, the petitioner is also entitled for refund. 10. I heard the learned Government Pleader, who argued for sustaining the order of the first respondent. 11. The order impugned in these writ petitions came to be passed by the assessing officer under the TNGST Act in view of the direction issued by this Court on the petitioner filing a writ petition seeking direction to the assessing officer to dispose of the representation of the petitioner dated March 18, 2003 within a period of one month from the date of receipt of copy of the order. The assessing Reported in [2004] 134 STC 272. officer in obedience to the directions issued by this Court passed the impugned order. I am of the view th....
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....ard and corrected. A rectification petition, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. (See Parison Devi v. Sumitra Devi (1998) 1 CTC 25 (SC). 13. In the order of assessment, there is no mistake, whatsoever, apparent on the face of the record. Hence, the petitioner is not entitled to have an order of rectification under section 55, but for the direction issued by this Court in the earlier writ petition. It can very well be seen from the order, the petitioner very innocuously submitted that a representation has been made on August 8, 2003 to the assessing authority without disclosing a statutory petition that has been filed under section 55 and obtained an order to dispose of the representation. 14. It may be true that there is nothing in article 226 of the Constitution of India to preclude the High Court from exercising the power of review, rather judicial review, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error committed by it. Viewing by this angle, the order impugned can very well be set aside restoring the assessment order. However, as the lea....
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....y system of payment by instalments; (viii) a person engaged in the business of transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (ix) a person engaged in the business of supplying by way of, or as part of, any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service is for cash, deferred payment or other valuable consideration." 18.. However, the charging section-section 3 of 1990 Act provides for levy of tax, which reads that subject to the provisions of this Act, there shall be levied and collected tax on the entry of any motor vehicles into any local areas for use or sale therein which is liable for registration, or for the assignment of a new registration mark in the State under the Motor Vehicles Act, 1988 (Central Act No. 59 of 1988). 19. The preamble of the Act reads that the 1990 Act is an Act to provide for the levy of tax on the entry of motor vehicles into local areas for use or sale therein. The Statement of Objects and Rea....
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....son in respect of any other period. Provided that, the assessing authority shall first apply such excess towards the recovery of any amount due in respect of which a notice under sub-section (4) of section 10 has been issued, and shall then refund the balance, if any." 23. The procedure for making the refund has been given in rules 7 and 8, which are not material for our purpose. 24. From the foregoing statutory provisions, it is clear that in respect of a dealer, who is dealing in motor vehicles, if the dealer imports into notified area the motor vehicles, either for use or for resale, the dealer shall pay the tax on the entry of motor vehicles into local area at the rate as fixed by the Government on the purchase value of the motor vehicle. However, section 4 provides for reduction of tax liability of the dealer to the extent of sales tax and additional sales tax liable to be paid by the dealer on the sale of such motor vehicles. Under this provision, the sales tax and additional sales tax payable by a dealer in respect of a sale of a motor vehicle can be adjusted or set off can be given on the amount of entry tax paid under the provisions of the Entry Tax Act. On the face ....
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....The respondents admit that there is availability of excess amount, but, they contend that there is no provision for refund under the Act. The above contention of the respondents is not correct, since section 11 of the Act provides for refund of tax under the Act in question. The learned single Judge has also pointed out the above section and relied on it. As per section 11, the assessing authority shall refund to the person the amount of tax and penalty if any paid by such person in excess of the amount due from him. Section 10 of the Act provides for payment of entry tax and section 11 of the Act provides for refund of excess tax paid. In the present case, after adjusting the tax payable by the petitioner under the Tamil Nadu General Sales Tax Act in the entry tax paid, there is availability of excess amount of tax paid by the petitioner and as such, the petitioner is entitled for refund of such excess amount." 27. I am of the view, on the reading of the reasoning given by the division Bench, that the decision cannot be made applicable to the facts of the present case. The case before the division Bench was one, wherein the respondent-assessing officer admitted the availability....