9911796707
TMI Blog2000 (9) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 5, 1999 whereby and whereunder the eligibility certificate granted in terms of section 41 of the West Bengal Sales Tax Act, 1994 for remission of the sales tax had been dismissed. The point involved in this application is an interesting one. The petitioner herein which is a registered company incorporated under the Indian Companies Act, 1956 had set up a small-scale industry within the territorial jurisdiction of the Calcutta Municipal Corporation for the purpose of manufacturing rubber goods, etc. Relying on or on the basis of the provisions contained in section 41 of the said Act the petitioner had filed an application before the concerned authority. Upon inspection of the factory of the petitioner the parties had satisfied themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit specified in column (2) of the said Table, and purchase of goods for use directly in the manufacture of such goods, and the tax payable by such dealer may be remitted- (a) in respect of the period specified in column (3) of the said Table, (b) for an amount not exceeding such percentage of gross value of the fixed capital assets as specified in column (4) of the said Table of seventy-five crore rupees, whichever is less." 3.. It appears from the table that maximum eligible period in respect of which payment of tax may be exempted commencing from the due date relating to the newly set up industry situate within an area under the Calcutta Municipal Corporation would be five years only in respect of electronic goods, gem, jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is revised otherwise under section 80 or section 81, or reviewed otherwise under section 83, by a competent authority." 5.. As a general principle of law the authority passing an order under bona fide mistake can pass an order rectifying the same. However, if such an order visits the affected party with civil or evil consequence or such an order had been passed after a long time the principles of natural justice are to required to be complied with. Reference in this connection may be made in S.K. Dogra v. Union of India reported in CAL LT 1996 (1) HC 73 wherein this Court has relied upon a decision of the apex Court in Bhagwan Shukla v. Union of India reported in AIR 1994 SC 2480. 6.. It is true that any order passed in derogation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. In Smith v. East Elloe Rural District Council [1956] AC 736 at p. 769 Lord Redcliffe observed: 'An order even if not made in good faith is sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. It is a well-known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to excuse or justify a technical violation of the law." 9.. However it appears that the point at issue is directly covered by several decisions of different High Courts. In K.P. Enterprises v. Divisional Deputy Commissioner of Sales Tax, Raipur reported in [1996] 102 STC 483 (MP), A.K. Mathur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner on March 27, 1993." 11.. K.P. Enterprises [1996] 102 STC 483 (MP), has been followed by a learned Judge of the Madhya Pradesh High Court in Kitchen Aid v. State of M.P. reported in [1998] 110 STC 109. 12.. Keeping in view the aforementioned decisions as also the phraseology used in the rules aforementioned we are of the opinion that as a specific power has been conferred upon the statutory authority to discontinue to grant remission of the tax which had earlier been granted in its favour even during the period for which it was eligible, in our opinion the power of the statutory authority must be held to be confined to the aforementioned extent and not to withdraw such concession with retrospective effect. 13.. We cannot lose s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
