THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19823 of 2010 January 21, 2011 Between: M/s.Vijaya Durga Stone Crushers, Vijayawada, represented by its Proprietor, Sri D.Nageswara Prasad … Petitioner And The Commercial Tax Officer, Nampally, Hyderabad and others ... Respondents THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.19823 of 2010 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner is a proprietary concern engaged in the business of stone crushing in the name and style of M/s.Vijaya Durga Stone Crushers. They statedly purchased a truck mounted chain run excavator from M/s.Volvo India Private Limited, Bangalore vide Invoice No.VDE/BLR/0206/2008-2009 dated 24.6.2008 for Rs.54,06,000/-. The second respondent issued show cause notice, being No.Rc.SA.4/71/2010, dated 22.7.2010, proposing to levy tax on the excavator under the provisions of the Andhra Pradesh Tax on Entry of Motor Vehicles into Local Areas Act, 1996 (the Entry Tax Act). The petitioner was called upon to submit objections, if any, within seven days. The show cause notice refers to the circular of the first respondent, namely, the Commissioner of Commercial Taxes, being CCT’s Ref.No.A1(3)/583/2008, dated 24.10.2008. The said circular, while making a reference to the decision of the Supreme Court in M/s.Bose Abraham v State of Kerala[1], instructs the Deputy Commissioners (CT) and Commercial Tax Officers (CTOs) in the State of Andhra Pradesh to levy and collect entry tax on the purchase/entry of all motor vehicles including cranes, excavators, JCVs, road rollers and other earth moving equipment except tractors and power tillers under the provisions of the Entry Tax Act. Aggrieved by the said circular, the petitioner filed the instant writ petition seeking its invalidation. Inter alia, the petitioner mainly contends that the Commissioner has no power or jurisdiction to issue instructions to quasi-judicial authorities, namely, CTOs; and the petitioner’s vehicle does not fall within the definition of ‘motor vehicle’ as per Section 2(28) of the Motor Vehicles Act, 1988. The first respondent filed counter affidavit in justification of the impugned circular contending that the circular is administrative in nature, which was issued to bring to the notice of all subordinate authorities the law laid down by the Supreme Court in M/s.Bose Abraham. We have heard the Counsel for the petitioner and the Special Counsel for Commercial Taxes. We have also perused the provisions of the Motor Vehicles Act and the Entry Tax Act. As rightly submitted by the Counsel for the petitioner, the Commissioner is not specifically conferred with any power to issue instructions to subordinate officials in so far as the method and manner of levy and collection of tax on the vehicles (whether or not motor vehicles) under the provisions of the Entry Tax Act is concerned. This does not, however, mean that as head of the Commercial Taxes department, the Commissioner is precluded from issuing circulars bringing to the notice of the subordinate officials the law laid down by the Supreme Court. There is no gainsaying that as per Article 144 of the Constitution of India “All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court ”. If the decision in M/s.Bose Abraham is a decision interpreting the term “motor vehicle” nothing is wrong in the Commissioner bringing it to the notice of the subordinate officials. But we are convinced that, while doing so, the Commissioner cannot issue binding instructions to the assessing officers, who exercise quasi-judicial functions to levy tax under the Entry Tax Act on all the motor vehicles which, according to him, are exigible to tax. These are the matters to be considered by the assessing officer depending upon the facts and circumstances of each case, after considering all the objections raised by the owners of such vehicles. In that view of the matter, that portion of the circular which specifically instructs the assessing officers to levy and collect entry tax cannot be sustained. While saying this, we may not be understood to have held that the decision of the Supreme Court in M/s.Bose Abraham applies or does not apply nor should we be understood as laying down the law that all excavators stand exempted from payment of tax under the Entry Tax Act. In the result, subject to the above observations, the writ petition is disposed of declaring the penultimate paragraph of the circular of the Commissioner of Commercial Taxes, being CCT’s Ref.No.AI(3)/583/2008, dated 24.10.2008, as without jurisdiction, and as being unenforceable. The second respondent shall have to follow the procedure prescribed under law, and consider the case of the petitioner on its own merits. The writ petition stands disposed of accordingly. No costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) January , 2011 YS [1] (2001) 3 SCC 157 : AIR 2001 SC 835 : (2001) 121 STC 614