9911796707
TMI Blog1992 (5) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Incentive Scheme for Industries, 1987 (hereinafter referred to as "the Incentive Scheme"). Under the scheme new units are exempted from payment of tax on the sale of goods manufactured by such units within the State of Rajasthan provided they fulfil the conditions laid down in the scheme. Petitioner-company has applied for exemption of payment of sales tax under the scheme to the District Industries Officer but the District Industries Officer has returned the application to the petitioner on the ground that the petitioner has not started commercial production. The company started commercial production with effect from June 28, 1988, hence it has a-again submitted application alone with the required documents on June 28, 1988. Copy of that application is marked as annexure 2. Some objections were again raised by the concerned officer pointing out some defects vide letter dated June 30, 1988. The required formalities were completed and the defects were removed and that has been communicated to the concerned authority vide letter dated July 16, 1988. The copy of the letter dated July 6, 1988 is marked as annexure 3. Again a reminder was issued on October 6, 1988 but nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect from June 28, 1988 but the exemption to the units like the petitioner has been withdrawn from August 6, 1988 and till that date no proper certificate for exemption under the scheme was issued to the petitioner and the exemption has been withdrawn from August 6, 1988 in case of the units similar to petitioner. The exemption is restored to the units like the petitioner with effect from September 10, 1990 and on the basis of amendment dated September 10, 1990 the certificate for exemption for the period from October 1, 1991 to September 30, 1992 has been issued. When the exemption has been withdrawn with effect from August 6, 1988, in case of the units like the petitioner, how exemption can be allowed to petitioner from June 28, 1988. The petitioner will not be loser. He will be entitled for exemption for a period of five years but not with effect from June 28, 1988. The exemption is allowed with effect from October 1, 1991 and this exemption will continue till five years on fulfilment of the conditions of the scheme. The exemption scheme No. F.4 (35)/FD/Gr-IV/87 was notified on May 23, 1987. Clause 7 provides how the newly established unit will obtain the eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as applied for exemption on June 28, 1988. On that day, the petitioner was entitled for exemption. If the concerned authority sit over the application, that is not the fault of the petitioner. When he is entitled for exemption under the scheme, the eligibility certificate should have been issued to him, once he applied for it in time. In fact, the petitioner has applied in time when the unit was eligible for exemption under the scheme. The next issue which is to be considered in this petition is whether subclause (d) to clause 7 of the scheme is ultra vires. Sub-clause (d) of clause 7 reads as under: "(d): The benefit of incentive scheme shall be available from the date of the issue of the eligibility certificate." Mr. Mehta submitted that when as per the provisions of the scheme, the certificate was not issued to the petitioner before August 6, 1988 and after amendment on August 6, 1988, petitioner was not entitled for exemption, the exemption is effective only from the date of issue of certificate and not from the date of the application. The learned counsel for the petitioner has challenged this amendment in clause 7 of the scheme by insertion of sub-clause (d) and placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, then what is the justification to deny the benefit of scheme to the petitioner with effect from June 28, 1988? When there is no case of the respondent that petitioner was not entitled for eligibility certificate on the date of application, i.e., June 28, 1988 but in fact the eligibility certificate has been issued to the petitioner on October 1, 1991, it is apparent that the petitioner was entitled and had fulfilled all the conditions for exemption under the scheme on June 28, 1988, the date on which petitioner commenced commercial production. The only difficulty which came in its way to get the eligibility certificate pertained to the amendment in the scheme by insertion of sub-clause (d) in clause 7. As per sub-clause (d) the exemption will be effective from the date of issue of eligibility certificate. No limit of time has been provided in the scheme as to when the certificate will be issued after the application for exemption is made. It is up to the sweet will of the authority and they can issue the certificate on the same day or after a month or after a year or after 10 years. This is unreasonable and arbitrary power provided by sub-clause (d) to the authority and is cer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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