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2001 DIGILAW 1131 (MAD)

State of Tamil Nadu and Another v. Ganesh Automobiles

2001-09-26

A.S.VENKATACHALA MOORTHY, C.NAGAPPAN, S.M.ALI MOHAMED

body2001
Judgment :- C. NAGAPPAN, J. This writ appeal has been preferred against the order of the learned single Judge, dated February 8, 1995, in Writ Petition No. 10954 of 1994 on the file of this Court. 2. The respondents are the appellants herein. 3. The petitioner, a registered partnership firm, is an authorised dealer for Hero Moped, Hero Puch Bike, API three wheelers and two wheelers and it is an assessee under the Tamil Nadu General Sales Tax Act, 1959. The petitioner has paid entry tax to the tune of Rs. 1, 15, 150 for the assessment year 1992-93 to the second respondent under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990. The firm was assessed by the second respondent in assessment order dated September 15, 1993, and a demand of Rs. 2, 89, 274 towards tax and Rs. 3, 425 towards surcharge and Rs. 3, 616 towards additional surcharge was raised. The amount paid by the petitioner as entry tax was not adjusted by the second respondent while passing the above assessment order. The petitioner is entitled for a sum of Rs. 57, 525 as refund. The petitioner in his additional affidavit has contended that it has paid a sum of Rs, 1, 15, 150 as entry tax and the sales tax due to be paid is Rs. 65, 487 surcharge Rs. 9, 825 and additional sales tax Rs. 20, 203 totalling to Rs. 95, 515. The petitioner is entitled for the refund of Rs. 16, 635. The petitioner gave representation on February 6, 1994 for the refund of the said sum to the respondents. But, there was no reply. The petitioner prayed for issue of a writ of mandamus directing the respondents to refund the excess amount of entry tax paid after adjustment as provided for under the Act. 4. The respondents in their counter-affidavit denied the claim of the petitioner and contended as follows. The petitioners are registered dealers and assessees under the Tamil Nadu General Sales Tax Act, 1959 5. 4. The respondents in their counter-affidavit denied the claim of the petitioner and contended as follows. The petitioners are registered dealers and assessees under the Tamil Nadu General Sales Tax Act, 1959 5. The learned single Judge, on a consideration of the matter came to the conclusion that the respondents are bound to refund the tax collected by way of entry tax after deducting the tax payable by the petitioner under the Tamil Nadu General Sales Tax Act and in view of some dispute with regard to the amount of tax payable by the petitioner-firm, there is a need for an enquiry with regard to the sales tax payable by the petitioner-firm and accordingly allowed the writ petition with a direction to the second respondent to hold an enquiry and if there is any balance remaining the same has to be refunded to the petitioner. Aggrieved by the same, the respondents have preferred the present appeal. 6. Admittedly, the petitioner-firm had paid a sum of Rs. 1, 15, 150 towards entry tax under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 and according to the petitioner, by virtue of section 4(1) of the Act, it is entitled for reduction of its liability in the payment of tax due under the Tamil Nadu General Sales Tax Act and the entry tax paid in excess of the sales tax due has to be refunded to the petitioner. According to the respondents, the petitioner paid entry tax of Rs. 1, 15, 150 and the sales tax due by them for the relevant year worked out to Rs. 95, 513 and it was adjusted from the entry tax paid and there is no provision under the Entry Tax Act to refund the excess entry tax paid by the petitioner. 7. 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. 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. In view of some dispute with regard to the amount of tax payable by the petitioner under the Tamil Nadu General Sales Tax Act, the learned single Judge has directed the second respondent to hold an enquiry in this regard and refund the balance if any. We agree with the reasonings of the learned single Judge and there are no merits in the appeal. 8. In the result, the writ appeal is dismissed. Appeal dismissed.