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TMI Blog2010 (3) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... centive Scheme under eligibility certificate granted to it continues however no set-off can be allowed, renders such entitlement of the assessee itself nugatory. Once the entitlement of the assessee to avail of concessional rate is not in dispute, the only way to allow him to avail of such concession logically and properly is to allow him the set-off of such excess tax suffered by him on the purchase of such raw material. The revision petitions filed by the Revenue are thus found to be devoid of merit - - - - - Dated:- 9-3-2010 - VINEET KOTHARI DR. , J. Dr. VINEET KOTHARI J. These revision petitions have been filed by the Revenue against the order of the Tax Board dated May 15, 2002, whereby upholding the order of the learned Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in similar circumstances, does not lay down the correct law and in view of the provisions of clause 4(c) of the Incentive Scheme, 1989 where akin provisions in clause 4(c) with its Explanation in the Incentive Scheme of 1987 were discussed by the court in the case of Nitin Spinners (S.B. Civil Sales Tax Revision No. 768 of 2002, decided on March 19, 2007) and the two parts of the provisions have to be read as two separate provisions. In other words, he submitted that the right to avail of concession under different provisions of the Act is not denied notwithstanding the fact that the assessee is availing of the benefit of Incentive Scheme but under no circumstances that right of availing of concessional rate can lead to grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners (S.B. Civil Sales Tax Revision No. 768 of 2002, decided on March 19, 2007), the Revenue is bound to give set-off to the extent of such excess tax suffered by the respondent-assessee on the purchase of such raw materials in excess of concessional rate applicable to him under sections 5C and 5CC of the Act and to this extent the set-off has to be given to the respondent-assessee and he submitted that this controversy has been settled by this court in the case of Nitin Spinners (S.B. Civil Sales Tax Revision No. 768 of 2002, decided on March 19, 2007). He further submitted that the Revenue is denying the benefit of set-off and contending to deny the set-off in the present case to the respondent-assessee only on the ground of prohibitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h law against its liability created under the Act of 1954 but exception to it is provided under the Explanation which clearly provides that the benefit for which such assessee is entitled to under sections 5C and 5CC of the RST Act, 1954 on sale or purchase of the goods on concessional rate of tax, then that benefit will continue. Clause 4(c) and its Explanation as well as sections 5C and 5CC of the Act of 1954 are absolutely clear and that there is no ambiguity. The ambiguity is because of the reason that the facts are not mentioned in the order by the assessing authority or by the Deputy Commissioner (Appeals) or by the Tax Board with respect to the claim of the assessee. It is not clear whether the assessee is claiming set-off of the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the Revenue that the said concession is being sought to be denied to the respondent-assessee on the ground of non-compliance with any condition of availing of the concession in sections 5C and 5CC of the Act. On the other hand, the contention is that the set-off cannot be allowed as per clause 4(c) and, therefore, the same deserves to be denied to the assessee only on the ground of prohibition contained in clause 4(c) of the Incentive Scheme. It is further not the case of the Revenue that the setoff has been allowed by the appellate court below in the impugned order only to the extent of rate of tax suffered by the respondent-assessee on the purchase of these raw materials in excess over concessional rates applicable to him under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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