2011 (9) TMI 894 - HC - VAT and Sales Tax

Vacation of interim order - Whether in fact any review application dated December 13, 2000 was filed by the petitioner and whether pending such review application, it is open for the respondents to proceed against the petitioner in pursuance of the orders dated October 21, 2000 and November 20, 2000 - Held that - Whether or not any review application, as claimed by the petitioner, was filed on December 13, 2000 or assuming in favour of the petitioner that if any such application was filed as claimed by the petitioner on December 13, 2000 the reviewing authority was required to decide the same within the maximum period available to it under clause (ii) and the proviso within 180 days, i.e., the period of 90 days as provided under clause (ii) and the extended limit of 90 days in aggregate. If no decision is arrived on the review application in the aforesaid period of 90 days, as prescribed under para 5A, the reviewing authority, in my opinion, would cease to have jurisdiction over the review application and the only remedy available to the applicant, in the present case the petitioner, would be of preferring an appeal before the learned Tribunal under rule 6 of the Scheme of 1989. With reference to the letter dated December 1, 2006, and the admitted case of the petitioner is that the said review application filed on December 13, 2000 was not decided and the prayer made is also for seeking a mandamus that the said review dated December 13, 2000 is deemed to have been decided as allowed. A reading of clause (ii) and the proviso does not show that there is any mention of deemed acceptance or refusal. even assuming that the petitioner had filed the review application on December 13, 2000, after the lapse of 180 days the reviewing authority would have no jurisdiction to decide the same. There is no specific provision for deemed acceptance and in absence of any such provision this prayer cannot be allowed. The alternate prayer of remand too cannot be accepted as the outer-limit of the 180 days period allowed too has long expired. As far as the other reliefs claimed regarding challenge to the orders dated October 21, 2000 and November 20, 2000, the petitioner has remedy of preferring appeal under para 6 of the Scheme of 1989 before the learned Tribunal. Decided against assessee.

Summary

Issues Involved:
1. Validity of the orders dated October 21, 2000, November 20, 2000, February 8, 2007, and May 19, 2008.
2. Deemed acceptance of the review application dated December 13, 2000.
3. Entitlement to Enhanced Fixed Capital Investment (EFCI) under the Incentive Scheme.
4. Remand for reconsideration of the review application.
5. Restraint on coercive recovery measures.
6. Quashing of any subsequent notices or orders.
7. Awarding of costs.

Detailed Analysis:

1. Validity of the Orders:
The petitioner sought to quash the orders dated October 21, 2000, November 20, 2000, February 8, 2007, and the demand notice dated May 19, 2008, claiming them to be "wrong, arbitrary, illegal, and unconstitutional." The court examined the procedural and substantive grounds for these orders and found no merit in the claims. The orders were upheld as valid.

2. Deemed Acceptance of the Review Application:
The petitioner argued that the review application dated December 13, 2000, should be deemed accepted due to the expiry of the stipulated period of 90 days. The court analyzed Para 5A of the Rajasthan Sales Tax New Incentive Scheme, 1989, which mandates that a review application should be decided within 90 days, extendable by another 90 days. The court concluded that there is no provision for "deemed acceptance" in the scheme, and thus, this relief could not be granted.

3. Entitlement to Enhanced Fixed Capital Investment (EFCI):
The petitioner claimed entitlement to EFCI of Rs. 396.72 crores. The court noted that the petitioner had not followed the proper procedural route to challenge the initial orders and had instead filed a review application which was not decided within the stipulated time. The court held that the petitioner should have appealed to the Rajasthan Tax Board as per the scheme's provisions.

4. Remand for Reconsideration:
The petitioner alternatively sought a remand for reconsideration of the review application. The court found that the outer limit of 180 days for deciding a review application had long expired, and thus, the reviewing authority had no jurisdiction to reconsider the application. Therefore, this relief was also denied.

5. Restraint on Coercive Recovery Measures:
The court had earlier restrained the respondents from recovering the disputed tax amount on the condition that the petitioner deposits 50% of the demand and provides solvent security for the balance. With the dismissal of the writ petition, this interim order was vacated, allowing the respondents to proceed with recovery.

6. Quashing of Subsequent Notices or Orders:
The petitioner sought to quash any notices or orders issued after the filing of the writ petition. The court did not find any merit in this prayer, as the primary reliefs sought were not granted.

7. Awarding of Costs:
The petitioner sought the awarding of costs for the writ petition. The court dismissed the writ petition and did not award any costs.

Conclusion:
The writ petition was dismissed, and the interim order dated July 1, 2008, was vacated. The petitioner was directed to seek condonation of delay if they chose to file an appeal under Para 6 of the Scheme of 1989 before the learned Tribunal. The applications for amendment of the writ petition and vacation of the interim order were also disposed of.