1994 (5) TMI 245 - HC - VAT and Sales Tax

Summary

Issues Involved
1. Legality of the rejection of the petitioner's application for form XXVIII-B.
2. Interpretation and applicability of Notification No. S.O. 123 dated March 5, 1990.
3. Eligibility for set-off under the Bihar Finance Act, 1981, and Bihar Sales Tax Rules, 1983.

Detailed Analysis

1. Legality of the Rejection of the Petitioner's Application for Form XXVIII-B
The petitioner, a small-scale industrial unit, challenged the order dated June 9, 1992, by the Deputy Commissioner of Commercial Taxes, Special Circle, Patna, which rejected the application for form XXVIII-B under rule 45 of the Bihar Sales Tax Rules, 1983. The rejection was based on the ground that the petitioner had not deposited the admitted tax on or after September 1, 1991, while incorrectly claiming the facility of set-off provided by S.O. No. 123 dated March 5, 1990. The court found that the order was based on inconsistent premises and was perverse, thus quashing the order and directing the second respondent to reconsider the matter in accordance with the law.

2. Interpretation and Applicability of Notification No. S.O. 123 Dated March 5, 1990
Notification No. S.O. 123, dated March 5, 1990, allowed small and medium-scale industrial units to set off the sales tax paid on the purchase of raw materials against the sales tax payable on the sale of manufactured goods, provided the raw materials were not purchased at a concessional rate under section 13 of the Bihar Finance Act, 1981. The petitioner argued that despite having a certificate under section 13, it had not used it to purchase raw materials at a concessional rate since April 1991. The court agreed, stating that the mere availability of the facility to purchase at a concessional rate does not disqualify the petitioner from the set-off benefit if the facility was not actually availed of.

3. Eligibility for Set-Off Under the Bihar Finance Act, 1981, and Bihar Sales Tax Rules, 1983
The court examined whether the petitioner was entitled to the set-off benefit under S.O. No. 123. It was noted that the petitioner had surrendered all unused forms for purchasing raw materials at a concessional rate and had not availed of such purchases since April 1991. Therefore, the petitioner was prima facie eligible for the set-off benefit. The court found that the second respondent's interpretation of S.O. No. 123 was incorrect and that the petitioner was entitled to the set-off benefit as it had not actually availed of the concessional rate facility.

Conclusion
The court quashed the order dated June 9, 1992, and directed the second respondent to reconsider the petitioner's application for form XXVIII-B in accordance with the law. The court also ordered that, pending final disposal, the petitioner should be supplied with form XXVIII-B to enable it to carry on its business. The final orders were to be passed within two months from the date of the judgment.