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2011 (2) TMI 1243

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..... id date, such dealer was having an option to avail of the facility of exemption from payment of tax under any scheme, to a new industrial units in force before May 6, 1994. But in the present case, the aforesaid position is not in existence and the said clause (ii) is also not available, matter is remanded to the State Level Committee to consider the case of the petitioner for grant of eligibility certificate - Writ Petition Nos. 12035, 18862 and 18863 of 2010 - - - Dated:- 1-2-2011 - Krishn Kumar Lahoti, Sushma Shrivastava, JJ. Ganesh Purohit, Sr. Adv. with Abhishek Oswal for the Petitioner Samdarshi Tiwari, Government Adv. for the Respondent ORDER This order shall decide W. P. No. 18862 of 2010 (Surya Poly Bag Pvt. Ltd. v. State of M. P.) and W. P. No. 18863 of 2010 (Surya Poly Bag Pvt. Ltd. v. State of M. P.). This is the third round of the petitioner before this court for ventilation of grievance that it is entitled for the eligibility certificate vide notification dated October 6, 1994, issued by the State under section 12 of the Madhya Pradesh General Sales Tax Act, 1958, annexure P/1, filed with the petition. It is also alleged that the dir .....

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..... tant. An amount of Rs. 14,05,000 was invested by the petitioner for the construction of the industry. The petitioner had already obtained an HT connection from MPEB. The petitioner had obtained licence from M. P. Pollution Control Board, Jabalpur, in respect of TVATer and air. Its unit was also inspected by the Chief Inspector of Factories, M. P. and a certificate dated August 25, 2001 was issued to the petitioner. The petitioner was registered with the Sales Tax Department with effect from June 24, 2000 and with the Central tax with effect from June 24, 2000. The petitioner was not granted eligibility certificate, so the petitioner filed a petition registered as W. P. No. 4868 of 2002 which was decided on September 11, 2003, in which in paras 3 to 5, this court directed thus:- (3) It is submitted by the learned counsel for the petitioner that as a result of this notification, the petitioners are affected despite of the fact that they have taken effective steps in pursuance of the notification dated October 6, 1994 though their commercial production came into being on October 20, 2000. It is put forth by him that by virtue of the said notification the unit is seriou .....

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..... matter on the basis of the cut-off dates as found in para 3 of the order, while cut-off dates were not applicable in the case of the petitioner. As per notification, annexure P/1, the petitioner was entitled for an eligibility certificate, which has been wrongly turned down by the respondent. The cut-off dates which are in para 3 of the scheme are not applicable in the case of the petitioner as this clause deals with a different situations which are not applicable in the case of the petitioner. That, the case of the petitioner ought to have been decided in the light of the directions issued by this court in W. P. No. 4868 of 2003. Shri Samdarshi Tiwari, the Government Advocate appearing for the State, opposed the aforesaid contention and submitted that:- (i) As per annexure R/2, the petitioner purchased the unit of M/s. Card Board and Paper Products Co., which was auctioned by the Debt Recovery Tribunal and the sale certificate R/2 dated July 10, 2000 was issued in favour of the petitioner. The petitioner got the ownership of the property only on July 10, 2000. So the petitioner was not entitled for exemption as the case of the petitioner falls in clause (II)(48) of the n .....

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..... sis of the concessions given by the Government Advocate disposed of the matter to decide it afresh and the assessing officer was directed to consider the case of the petitioner if it is covered by the earlier notification and to extend the benefit of the earlier notification. For ready reference paras 4, 5 and 6 of the order dated September 11, 2003 in W. P. No. 4868 of 2002 are quoted thus:- 4. Without getting into the constitutional validity of the notification a suggestion was given by the court to the learned counsel for the parties, if the petitioner has actually taken effective steps in pursuance of the notification dated October 6, 1994 and is covered from all quarters and angles should be given benefit or not. The learned Government Advocate for the State has clearly stated, as a special case, this can be given, but the petitioner has to prove strictly that he is covered essentially and effectively by the earlier notification. 5. We have been apprised at the Bar that assessment proceedings in some cases are in progress. The notification pertains to tax exemption. If the petitioner-assessee can suitably satisfy the assessing officer that his case is covered by the .....

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..... then in force, before April 1, 1995. The aforesaid clause 3(i) specifically deals with different situations where the dealer who establishes a new industrial unit on or after 6th May, 1994 or who undertakes expansion in the existing industrial unit on or after such date shall have the option to avail of the facility of deferment of payment of tax under the Madhya Pradesh Deferment of Payment of Tax Rules, 1994 in lieu of the facility of exemption from payment of tax under this notification. It is not the case here. The petitioner never claimed for deferment of the payment of tax, so the sub-clause is not applicable in the present case. Sub-clause (ii) applies where effective steps were taken for establishing a new industrial unit before May 6, 1994, but who commences commercial production in such industrial unit on or after the said date, such dealer was having an option to avail of the facility of exemption from payment of tax under any scheme, to a new industrial units in force before May 6, 1994. But in the present case, the aforesaid position is not in existence and the said clause (ii) is also not available. Sub-clause (iii) deals the position whether any dealer who had .....

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..... ittee who can consider the case of the petitioner more effectively, properly for grant of eligibility certificate and in accordance with the order dated September 11, 2003. On this contention Shri Purohit, the learned senior counsel appearing for the petitioner, submitted that he has no objection if the matter is remanded to the State Level Committee for reconsideration. In view of the aforesaid, the decision of the District Level Committee dated February 1, 2010, annexure P/8. is hereby quashed. The matter is remanded to the State Level Committee to consider the case of the petitioner for grant of eligibility certificate in light of direction issued by this court in W. P. No. 4868 of 2002. It is also made clear that the State Level Committee shall consider the case of the petitioner strictly in accordance with the notification dated October 6, 1994. The petitioner may submit additional facts to take benefit of notification dated October 6, 1994, if any, before the State Level Committee within 30 days from today. The State Level Committee shall decide the matter expeditiously as far as possible within a period of four months from today. Before deciding the matter finally, .....

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