THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14412 OF 2011 Dated:27.06.2011 Between: Transworld Garnet India Private Limited, Having its Project Office at # 14-9-136/2A, Dhandi Street, C.B.Road, Srikakulam, Represented by its General Manager, Sri K.P.Reddy, S/o.late K.V.Reddy, Aged abut 59 years, R/o.Srikakulam .. Petitioner And The Commercial Tax Officer, Srikakulam Circle, Srikakulam (AP) .. Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14412 OF 2011 ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) The assessment order dated 15.04.2011, whereby the petitioner was sought to be levied Entry Tax of Rs.17,67,624/-, is under challenge in this writ petition. The petitioner, who is engaged in the business of mining and processing of beach sand, claims to own two separate mining and mineral extraction units, one of which is in Srikakulam District of the State of Andhra Pradesh. The petitioner claims to be using the machines, in areas where the sand is separated, only within enclosed confines. He stated that he had purchased five excavator loaders of M/s.JCB India Limited and one crane in the year 2009. On 26.10.2010 the respondent issued notice seeking to levy Entry Tax on these machines contending that they were ‘motor vehicles’. Pursuant to the said notice, the petitioner in his reply on 22.11.2010 contended that the vehicles in question did not fall within the definition of a ‘motor vehicle’. The respondent, however, issued the assessment order dated 15.04.2011. Sri B. Chandrasen Reddy, learned counsel for the petitioner, points out that, while the assessment order is said to have been issued under the Andhra Pradesh Tax on Entry of Goods into Local Areas Act, 2001 (2001 Act), the definition of “motor vehicles” found therein is the definition under the Andhra Pradesh Tax on Entry of Motor Vehicles Act, 1996 (1996 Act). A Division Bench of this Court in Sree Rayalaseema Alkalies and Allied Chemicals Limited, Hyderabad v. State of Andhra Pradesh[1] declared the 2001 Act as ultra vires Article 304 of the Constitution of India. Sri P.Balaji Varma, learned Standing Counsel for Commercial Taxes, would fairly state that, though the assessment order refers to the 2001 Act which has been declared ultra vires by a Division Bench of this Court, the endeavour of the assessing authority was only to levy tax under the 1996 Act, the validity of which was upheld by this Bench in M/s.Vijaya Traders, Kadapa v. the Commercial Tax Officer-I, Kadapa[2]. The assessment order makes a reference to both the 2001 Act and the 1996 Act. The petitioner cannot, obviously, be assessed under the 2001 Act, but can be assessed to tax under the 1996 Act, if they fall within the ambit of the said Act. We deem it appropriate, in such circumstances, to set aside the assessment order impugned in this writ petition, leaving it open to the assessing authority, if he so chooses, to issue a notice afresh under the 1996 Act and thereafter take action in accordance with law. The writ petition is, accordingly, disposed of. However, in the circumstances, no order as to costs. ________________ (V.V.S. RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 27.06.2011 KH [1] 2008 APSTJ (46) 1 [2] W.P.Nos.12455 of 2005 and batch, Dated 22.06.2011