DUBEER AND CO Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner, in these petitions, is a registered dealer under the provisions of the Karnataka Entry Tax Act, 1979 (hereinafter referred to as "the Act")

(2.) IN these petitions, it has called in question the correctness of the order of assessment dated 1st April 1982 to 31st of March 1983, 1st of April 1983 to 30th of September 1983, 1st of October 1983 to 30th of September 1984 and 1st of October 1984 to 30th of september 1985, copies of which have been produced as Annexures-A to D respectively, passed by the Assessing Authority and the order dated 8. 4. 1988, a copy of which has been produced as Annexure-E, passed by the Deputy Commissioner for Commercial Taxes, ie. , the first appellate Authority, rejecting the appeals filed by the petitioner against the orders of assessment and also the order dated 19th of march 1990, a copy of which has been produced as Annexure-F, passed bv the Karnataka Appellate Tribunal at Bangalore (hereinafter referred to as "the Tribunal") confirming the orders of assessment annexures-A to D and the order Annexure-E made in the appeals by the first appellate Authority. 2a. A few facts, which have a bearing for the disposal of these petitions, may be set out as under: the petitioner is admittedly a dealer in industrial machinery and its parts. It further claims that it is also a dealer in electrical motor and grinding mills and also a distributor for Kirloskar Lathe Machines. The Assessing Authority, in Annexure-A to D, for the assessment years 1st of April 1982 to 31st of March 1983, 1st of April 1983 to 30th of September 1983, 1st of October 1983 to 30th of September 1984 and 1st of October 1984 to 30th of September 1985 assessed the petitioner for payment of entry tax in respect of lathe Machines, grinding Mills and electrically operated motors on the ground that the petitioner purchased the said items of machineries and had brought it within the local area as provided under Section 3 of the act. The said orders of assessment were unsuccessfully challenged in appeal before the Deputy Commissioner for Commercial Taxes, the first appellate Authority, and also before the Tribunal, the second appellate Authority. Aggrieved by the said orders, these petitions are presented.

(3.) SRI R. V. Prasad, learned Counsel for the petitioner, made three submissions challenging the correctness of the orders impugned. Firstly, he submitted that the Lathe Machines, in respect of which the petitioner has been assessed for payment of entry tax, were not brought within the Local Area and as such, the finding recorded by the Authorities in the orders impugned making the petitioner liable to pay entry tax under Section 3 (1) of the Act, is totally erroneous in law. In this connection, he referred to me the provisions contained in Section 3 (1) and 3{2) of the Act. He further submitted that the petitioner has not caused entry of the Lathe Machines into any local area and he directly sold it to various other customers, who directly took delivery of the said goods from the manufacturers. Secondly, he submitted that the Grinding Mills are not industrial machineries within the meaning of ltem-7 of the schedule given to the Act. The learned Counsel pointed out that the Grinding Mills in which the petitioner has dealt with, are not industrial machineries, but are machineries used for conversion of wheat or gram into wheat products, such as, soji, atta, maida, and they are normally used by the house wives and they are not used as industrial machineries. In support of this submission, he referred to me the decision of this court in the case of MYSORE SALES CORPORATION vs assistant COMMISSIONER OF ENTRY TAX, which has been affirmed by the Division Bench in ASSISTANT COMMISSIONER OF entry TAX vs MYSORE SALES CORPORATION. Finally, he submitted that the electrically operated motors also cannot be treated as part of industrial machineries in respect of which levy can be imposed under ltem-7 of the Schedule given to the Act. According to the learned Counsel, electrically operated motors are electrical goods within the meaning of Entry-13 given to the Schedule to the act, which was in the Statute Book till 31. 3. 1993. Elaborating this submission, Sri Prasad submitted that though in the notification, the petitioner was made liable for payment of entry tax for the period from 1. 4. 1982 to 31. 3. 1983 by means of notification bearing No. FD 76 CET 84 (l) dated 13th of November 1984, the levy of tax on electrical goods including the electrically operated motors etc. , as set out in ltem-1 of the notification bearing No. FD 76 CET 84 (ll)dated 13th of November 1994, came to be superseded and levy was removed with effect from 1. 4. 1983 to 23. 10. 1984. He further pointed out that by virtue of notification bearing FD No. 73 dated 13th of November 1984, the petitioner was assessed for payment of entry tax on electrical motors at one percent; and therefore, the learned Counsel would submit that the electrical motors dealt with by the petitioner, is not liable for payment of entry tax after 1st of april 1983. For all these, he reiterates that the electrical motors, in which the petitioner was dealing, cannot be considered as an industrial machinery.