9911796707
TMI Blog2007 (10) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... H ROY, J. JUDGMENT:- HRISHIKESH ROY J. Heard Mr. OP Bhati, learned counsel for the petitioner assisted by Mr. A. Khanal, learned counsel and Mr. R. Dubey, learned counsel appearing on behalf of the respondent-State. The petitioner who is a dealer under the Assam Finance (Sales Tax) Act, 1956 (since repealed), hereinafter, referred to as the 1956 Act was registered with the sales tax authorities for the purpose of taxation initially as a partnership concern. Thereafter, the partnership was dissolved and the petitioner became a proprietorial concern. The petitioner-industry was set up for manufacture of steel and wooden furnitures having its industrial unit at Guwahati. The said unit initially claimed benefit of the incentives offered under the Industrial Policy declared by the Government of Assam in the year 1982. The present dispute pertains to the claim made by the petitioner-industry with regard to the benefits sought under the Industrial Policy declared subsequently by the Government of Assam in the year 1986, hereinafter referred to as the 1986 Policy . Under clause 1.1 in Part II of the 1986 Policy, the new package of incentives was to remain in operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under the provisions of the Act, the certificate of authorisation is to be granted on making of application as provided under section 4. Under sub-section (3B), the State Government is empowered to issue appropriate notification in the Official Gazette to specify the conditions under which the new industrial units would be entitled to exemption provided under the Concession Act. The said section prescribes for a period of five years from the date of commencement of production in such new industrial unit, for entitlement of benefits envisaged under the Concession Act. The employment norms have been prescribed under section 16 of the Act to confer the benefit of concession only to such industrial units which employ not less than 80 per cent of its total strength from amongst the local populace and, that too, only on production of a certificate to that effect, issued by the competent authority. Under the Concession Act, the Assam Industries (Sales Tax Concession) Rules, 1988 came to be framed, hereinafter referred to as the Concession Rules . Under the Concession Rules, the Superintendent of Taxes has been made the authority in respect of the new industrial units for exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,34,776 March 31, 1992 6,10,075 September 30, 1992 2,77,952 March 31, 1993 5,17,375 June 30, 1993 The revisional authority exercising powers under section 36 of the 4,56,876 Assam General Sales Tax Act, 1993, hereinafter referred to as the Sales Tax Act , considered the said assessment order dated February 4, 1994 as erroneous and prejudicial to the interest of Revenue and invoking the powers prescribed under section 36(1) read with section 74(3)(b) of the said Act, initiated a suo motu revision proceeding and appropriate show-cause notices were issued to the petitioner requiring it to show cause as to why the assessment order passed in their favour would not be revised. It was indicated in the show-cause notice, inter alia, that authorisation certificate is admissible only to new industrial units as per the provisions of the Concession Act and in the present case the dealer was granted authorisation certificate for a total period of 10 years, i.e., from April 4, 1985 to April 3, 1990 and again from March 24, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. O.P. Bhati, the learned counsel for the petitioner submits that the revisional authority was not competent to exercise his jurisdiction under section 36 of the Sales Tax Act, inasmuch as the said power cannot be exercised to correct some error committed by the assessing authority. The learned counsel further contended that the certificate of authorisation has been issued in the instant case by the Superintendent of Taxes who is the competent authority to issue such certificate and, accordingly, there is no justification for declaring the assessment order to be erroneous when the assessing authority had acted on the basis of a certificate issued by a competent authority. The final contention made on behalf of the petitioner is that the while exercising powers of suo motu revision, the revisional authority is not competent to interfere with an order of assessment only because such order of assessment is wrong. According to Mr. Bhati, such power of suo motu revision can be exercised only when the assessment order is an erroneous order suffering from jurisdictional error which is distinct from errors relating to determination of liability to pay tax. It is also submitted by Mr. Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the interest of Revenue and, accordingly, the revisional authority had rightly exercised its power to interfere with the assessment order. Responding specifically to the argument advanced by the learned counsel for the petitioner regarding the scope and ambit of exercise of revisional powers, the learned Government Advocate submits that only when an industry is eligible for exemption from payment of tax as provided by the Act and the Rules, the assessing authority is competent to grant such exemption. Since in the instant case, exemption was granted by acting on an authorisation certificate which was secured by disregarding the provisions of the Act and the Rules, exercise of power by the assessing authority has to be held to be without jurisdiction because of which, the assessment order would become amenable to correction by the revisional authority. The learned counsel in support of his arguments has cited the decision rendered by this court on March 20, 2007 in W.P. (C) No. 8478 of 2001 [G.E. Lightings (India) Ltd. v. State of AssamSee [2009] 20 VST 361 (Gauhati).]. Although elaborate arguments have been advanced by the learned counsel appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yam Rajendra Prasad [2008] 12 VST 344 (Gauhati), I am of the considered view the said authorisation certificate dated October 15, 1993 was not only erroneously made the basis for grant of exemption, but the assessing authority also granted exemption of tax to an old unit which was not at all eligible to such exemption under the Concession Act. This court in G.E. Lightings (India) Ltd.See [2009] 20 VST 361 (Gauhati). has held that where the assessing officer though vested with jurisdiction have exercised it wholly illegally or in an apparently irregular manner, this would be a case of jurisdictional error. When an assessment is done without making the requisite enquiry as is duty-bound to made by an officer, this would be a case where exercise of power would be without jurisdiction. I am in respectful agreement with the ratio declared in G.E. Lightings (India) Ltd.See [2009] 20 VST 361 (Gauhati). The revisional authority in the present case found that the assessing authority didn't make the requisite application of mind or made the necessary enquiry as to whether the petitioner was a new industrial unit which is eligible to obtain a certificate of authorisation under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
