CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1.0. By way of this petition being Special Civil Application No.5379 of 2016 under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, direction and order quashing and setting aside the impugned demand notice dated 20.02.2016. The petitioner has also prayed for an appropriate writ, direction and order to quash and set aside the impugned assessment order dated 13.06.2016.

1.1. The petitioner has also prayed for appropriate writ, direction and order permanently restraining the respondent from recovering the entry tax or penalty under the Entry Tax Act on purchase of Hydraulic Excavator made on 29.09.2016.

2.0. So far as Special Civil Application No.7844 of 2016 is concerned, the petitioner has also prayed to quash and set aside the impugned notices for payment of tax issued in Form -3 dated 13.04.2016 passed by the respondent no.2 herein. The petitioner has also prayed to quash and set aside the impugned notices for assessment issued in Form -2 dated 13.04.2016 by the respondent no.2. The petitioner has also prayed to quash and set aside the impugned notices for demand dated 13.04.2016 issued by the respondent no.3 to the petitioner.

Special Civil Application No.5379 of 2016

3.0. The facts leading to the present Special Civil Application No.5379 of 2016 in nutshell are as under:

3.1. That the petitioner is a proprietorship firm and works a contractor engaged in road construction. That the petitioner is registered under VAT Act. That on 29.09.2006 the petitioner purchased a hydraulic excavator for use in execution for works contract. According to the petitioner, the purchase was duly recorded in the books of accounts. According to the petitioner, hydraulic excavator is a machine mounted on chains and not on rubber tyres. Therefore, according to the petitioner, the petitioner believed that such machine was not “specified goods” for the purpose of entry tax and hence it did not pay entry tax at the relevant time on such machine. That after a period of approximately 12 years, in the year 2016, the petitioner received one inquiry from the respondent authorities as to whether entry tax was paid on the hydraulic excavator which was purchased on 29.09.2006. That by written submission dated 25.1.2016, the petitioner submitted that hydraulic excavator was a machine used in execution of works contract and hence it was not “specified goods”, no entry tax has been paid on such purchase. It was also contended that assessment of entry tax in respect of such purchase was time barred by now. That the respondent authority issued notice dated 30.01.2016 issued in Form 401 asking the petitioner to submit challan showing payment of entry tax. That vide notice dated 1.2.2016 Commercial Tax Officer issued notice proposing to impose entry tax. The notice to impose entry tax was issued under Section 34(8) of the VAT Act. That the petitioner submitted the reply to the notice on 5.2.2016 wherein again it was contended that hydraulic excavator was not “specified goods” and also that assessment of entry tax for goods purchased on 29.09.2006 was time barred. It is the case on behalf of the petitioner that thereafter without passing any assessment order, the respondent authorities have issued the impugned demand notice to the petitioner on 20.02.2016 asking the petitioner to deposit entry tax on the purchase made on 29.09.2006 along with penal interest and penalty. Vide communication dated 24.02.2016 the petitioner requested respondent authority to reconsider its decision. However, nothing further was done and the respondent authorities continue to demand the entry tax on the purchase of hydraulic excavator purchased in the year 2006. Hence, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India.

Special Civil Application No. 7844 of 2016

4.0. The facts leading to the present Special Civil Application No.7844 of 2016 in n