TaxTMI 
TaxTMI 
2020 (5) TMI 390
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....ure of R.C.C. Sleepers in the factory set up on the land belonging to the Railways, which has been given on the basis of a licence issued by them; as disclosed from a copy of the licence deed produced as Annexure RA/1. In the course of the manufacturing exercise pursued by the Applicant, the Applicant purchases steel, cement and such other consumables from various places and are brought to the factory premises situated on the land belonging to the Railways, where the factory is setup. 4. It is stated that Entry Tax in respect of such goods brought into the premises of the Railways was not being charged in terms of Section 3 (1) (a) of the Entry Tax Act, 1976 (for short, 'Act of 1976') as the authorities were having no doubt that the land belonging to the Railways would not fall within the meaning of the term 'local area' defined under the statue. Annexure RA/2 circular dated 03.02.1995 was issued by the Commissioner of Sales Tax, Madhya Pradesh (the State of Chhattisgarh being part of the said State at that point of time) to the effect that no tax under the Entry Tax Act was to be levied in respect of the goods brought into the land belonging to the Railways and th....
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....e Tribunal, which also did not turn to be fruitful. The said appeal came to be dismissed as per Annexure RA/7 order after the pronouncement of the verdict passed by the Apex Court in Annexure RA/9 case-Senior Divisional Mechanical Engineers vs. State of Orissa & Others on 07.08.2008. The Commissioner issued Annexure RA/8 circular dated 16.05.2011 instructing to levy Entry Tax on entry of goods even into the 'Railway areas', treating it to be a 'local area'. 7. In the said circumstances, the Applicant filed an application for reference suggesting some questions of law. Referring to the verdict passed by the Apex Court as above (Annexure RA/9) and also a judgment passed by a learned Single Judge of this Court in the case of Budhwari Bazar Vyapari Sang & Others vs. State of Chhattisgarh & Others reported in (2016) 92 VST 97 (CG) it was held that the question of law having already been decided and declared, nothing remained to be referred further, and it was accordingly that the reference application was dismissed as per Annexure RA/10 order dated 27.03.2018. This made the Applicant to approach this Court by filing the above case seeking for reference under Section 55....
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....ered by the Tribunal; who, hence went wrong in not referring the questions to this Court, but for simply rejecting the application preferred in this regard. The last submission is that, the assessment had been finalized much earlier, but it came to be reopened only with reference to the subsequent ruling rendered by the Supreme Court in Annexure R-A/9 despite the fact that subsequent ruling by any Court of law is not a ground for reopening the assessment, once it has become final. Reliance is sought to be placed on the decision rendered by the Apex Court in the case of Dy. Commissioner of Income Tax vs. Simplex Concrete Piles (India) Ltd. reported in (2013) 23 STJ 263 (SC) in this regard. 10. Incidentally, it is to be noted that the Applicants have filed IAs in all the four matters; seeking for amendment to the question to be referred, in addition to the four questions suggested in paragraph 3 of the memorandum of appeal. It is stated that while drafting the application dated 02.06.2018 filed before the Tribunal seeking for reference, the Applicant inadvertently omitted one question of law to be drafted and included and the same hence is sought to be incorporated by way of amendm....
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....utside thereof including a place outside the State for consumption, use or sale therein; (b) "Entry tax" means a tax on entry of goods into a local area for consumption, use or sale therein levied and payable in accordance with the provisions of this Act [and includes composition money payable under Section 7-A;] (d) "Local Area" means the area comprised within the limits of a local authority;" 15. It has been clearly stipulated under Section 6 of the said Act dealing with the principles governing levy of Entry Tax on dealer or person under sub-section (1) (a), that Entry Tax shall not be payable unless the dealer or such person effects entry of goods specified in Schedule II or Schedule III into a 'local area'. Under Section 6 (1) (b), it is stated that where any such goods are consumed, used or sold in a local area by the dealer or such person, it shall be presumed, until the contrary is proved by him, that such goods had entered into that local area for consumption, use or sale there. The burden of proof is mentioned under Section 11, to the effect that the burden of proving the various incidences mentioned under Clauses (a) to (f) therein (including that a dealer or ....
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....orsed the same in favour of the dealers of Rajnandgaon, Raipur, Dhamthari and Raigarh. The said dealers caused entry of the goods in their respective areas and had also paid the Entry Tax. The Taxing Authorities over-ruled the objection and fixed the liability upon the Assessee and ultimately, the learned Single Judge of the High Court held that mere entry of the 'title deeds' into local area would not come within the ambit of levy of Entry Tax Act. It was further held that the sale of 'bilties' took place at Maldhakka, which was not a 'local area' and hence the Assessee was not liable to satisfy the Entry Tax. 19. The matter was taken up before the Division Bench at the instance of Revenue and after considering the relevant provisions of law and the precedents, the Division Bench affirmed the view taken by the learned Single Judge and the appeal preferred at the instance of the Revenue was dismissed. This also does not support the case of the Applicant, as the specific case of the Applicant was with regard to the goods actually brought into the area in question and not the title deeds. 20. It is true that the exact question whether the goods brought into ....
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....pose taxes including Octroi Duty on the goods brought within the limits of the Municipal area. The significant thing to be noted, as held by the Apex Court, was that Octroi Duty could fall within the ambit of Section 184 (1) as a tax in aid of the fund or any local authority; which will not apply to the tax of Entry Tax leviable under Section 3(1) of the said Act of 1999 (which tax is imposed and collect by the State Government). It was also observed that the words "any tax" in Section 184 of the Railways Act, 1989 was required to be read in the context of Article 285 of the Constitution of India and to be understood as any tax on property or income as a direct tax. 22. Coming to the instant case, it is very much evident from the additional document produced as Annexure A/1 by the Respondent/State alongwith IA No. 2 of 2019 and as admitted from the part of the Applicant in Annexure R/3 annexed to the reference application (as mentioned in paragraph 4 of I.A. No. 2 of 2019) that the factory of the Assessee is located at 'Badiyatola' which is Ward No. 7 of the Municipality, Dongargarh. Insofar as the place in question is situated in the 'local area' as notified by th....
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....ismissed as withdrawn. There is a stiff opposition from the part of the Government counsel with regard to the amendment in the other two cases, pointing out that a question which was never raised before the Tribunal for being considered as a matter for reference, can never be brought up for consideration before this Court for the first time, in view of the law declared by the Apex Court in the case of Commissioner of Income Tax, Bombay vs. Scindia Steam Navigation Co. Ltd. reported in AIR 1961 SC 1633. In the said case, an application was filed under Section 66(1) of the Income Tax Act, 1961 (which is akin to Section 55(2) of the Chhattisgarh Value Added Tax Act, 2005); but the question referred by the Tribunal for opinion of the High Court was somewhat different. The main contention raised before the Supreme Court was whether it was open for the High Court to go into the question, particularly as to the applicability to the relevant proviso to the provision concerned, which was neither raised before the Tribunal nor considered by it and hence could not therefore be said to be a question arising 'out of the order of the Tribunal', which alone could be referred for decision....