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47 S.B. CIVIL REVISION PETITION NO.

66/2008
Asstt Commissioner (AE), Udaipur
Vs.
M/s Raghuveer Construction Company, Udaipur

Date of Order :: 22nd April 2008.


HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr.Vineet Kumar Mathur)
Mr.Rishabh Sancheti ) for the petitioner.
....
Having heard learned counsel for the petitioner and having perused the impugned
orders with reference to the provisions of the Rajasthan Tax on Entry of Motor Vehicles into
Local Areas Act, 1988 ('the Act of 1988') and the Rajasthan Sales Tax Act, 1994 ('the Act of
1994'), this Court is satisfied that the learned Deputy Commissioner (Appeals) has rightly set
aside the levy of surcharge in the Assessment Order as made by the Assessing Authority
under Sections 3,6 & 7 of the Act of 1988; and the learned Tax Board has rightly dismissed
the appeal filed by the Department.
The incident of tax as per Section 3 of the Act of 1988 is on entry of a motor vehicle
into a local area for use or sale therein where the vehicle is liable for registration in the State
of Rajasthan under the Motor Vehicles Act. Further, under Section 6(1) of the Act of 1988,
the Assessing Authority may after affording an opportunity of hearing, impose penalty not
exceeding 50% of the amount of tax in addition to the tax payable, on the person liable to pay
tax under the Act if he fails to comply with any of the provisions of the Act or the rules made
thereunder. Per Section 6(2), subject to the provisions of the Act of 1988, all the provisions
relating to offences and penalties, including interest, of the Rajasthan Sales Tax Act, 1954
(Act No.29 of 1954) are mutatis mutandis applicable in relation to the assessment,
reassessment, collection and enforcement of payment of tax required to be collected under the
said Act of 1988 or in relation to any process connected with such assessment, reassessment,
collection and enforcement of payment as if the tax under the Act of 1988 were a tax under
Act No.29 of 1954.
Section 7 of the Act of 1988 provides for applicability of the provisions of Rajasthan
Sales Tax Act, 1954 ( Act No.29 of 1954) and the rules made thereunder in the following
terms:-

''7.Applicability of the provisions of the RST Act, 1954 (Act No.29 of 1954) and the rules
made thereunder:-

Subject to the provisions of this Act and the rules made thereunder, the authorities
empowered to assess, reassess, collect and enforce payment of tax under the RST Act, 1954
(Act No.29 of 1954) shall assess, reassess, collect and enforce payment of tax including
penalty or interest payable by an importer under this Act as if the tax, penalty or interest were
payable under the said Act, and for this purpose they may exercise all or any of the powers
assigned to them under the said Act and all the provisions of the said Act and the rules made
thereunder for the time being in force including the provision relating to returns, advance
payment of tax, provisional assessments, recovery of tax, appeals, rebates, penalties, interest,
compounding of offences and other miscellaneous matters shall, mutatis mutandis, apply.”

Of course, the aforesaid Act No.29 of 1954 stands repealed by the Act of 1994 but
even when reference to the Act No.29 of 1954 in the provisions of the Act of 1988 is read as
that to the Act of 1994, the fundamental fact remains that the provisions of the Act of 1988
do not provide for levy of surcharge as contemplated by Section 13 of the Act of 1994. The
authorities empowered under the Act of 1994 even when could assess, reassess, collect and
enforce payment of tax including penalty or interest payable under the Act of 1988 as if the
tax, penalty or interest were payable under the Act of 1994 yet, they can do so subject to the
provisions of the Act of 1988. Neither Section 7 nor any other provision in the Act of 1988
envisage levy of surcharge on the tax payable thereunder. Levy of surcharge under Section 13
of the Act of 1994 is on the amount of tax or on the sum in lieu of tax payable under the Act
of 1994; and such provision cannot be read into the Act of 1988.
Learned counsel for the petitioner endeavoured to argue that when the authorities
dealing with the assessment, collection and enforcement of tax under the Act of 1994 could
assess, reassess, collect, and enforce payment of tax under the Act of 1988; and the definition
of ''tax'' as contained in the Act of 1994 means any tax or other levy by any name leviable
under the provisions of the Act of 1994, levy of surcharge ipso facto gets included as a
component of levy under the Act of 1988. The argument is not correct. The definition as
contained in Clause (i) of Sub-section (1) of Section 2 of the Act of 1988 makes it clear that
for the purpose of the Act of 1988 ''tax'' means the tax payable under this Act. Levy of
surcharge is not envisaged by any of the provisions of the Act of 1988. The Appellate
Authorities have rightly set aside such a levy of surcharge in the present case.
There is no force in this revision petition and the same is, therefore, dismissed
summarily.

(DINESH MAHESHWARI), J.

s.soni