9911796707
TMI Blog2008 (12) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the parties, and perused the affidavit, counter-affidavit and rejoinder affidavit, on record. Brief facts of the case, as narrated in the writ petition are that the petitioner-M/s. HCL Infosystem Limited, is a duly incorporated company under Indian Companies Act, 1956. The petitioner had obtained allotmentcum-lease of plot Nos. 1, 2 , 27 and 28 in Sector 5, 11E, Pant Nagar, District Udham Singh Nagar, in the year 2005, and the possession of said land was given to the petitioner on May 7, 2005, for establishing its unit. The petitioner-company is engaged in manufacture and sale of Information Technology (for short, I.T.) products, viz., computers and parts thereof, in the aforesaid plots. Earlier to establishment the factory at Pant Nagar, petitioner was engaged in only trading activity pertaining to electronics goods, viz., photo copiers, fax, etc., in Uttarakhand. The petitioner is duly registered under the Uttaranchal Value Added Tax Act, 2005, as well as the Central Sales Tax Act, 1956. The State Government of Uttarakhand exercising its power under sub-section (5) of section 8 of the Central Sales Tax Act, 1956, issued a Notification No. 23/XXVII (8)/Commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw the concession granted under sub-section (5) of section 8 of the Act. It is further pleaded that there is no "public interest" involved in withdrawing the concession granted vide notification dated January 9, 2006. A counter-affidavit has been filed on behalf of respondent Nos. 1 and 2, contesting the writ petition, in which it has been stated that in the year 2003, the Central Government came up with excise duty exemption package for the State of Uttarakhand to encourage the industries to start their manufacturing activities in the State. The petitioner-M/s HCL also started construction work to establish its unit under said scheme in the year 2005. No doubt, on January 9, 2006, the State of Uttarakhand did issue a notification under sub-section (5) of section 8 of the Central Sales Tax Act, 1956, giving rebate in the rate of tax on IT goods on certain terms and conditions. One of the main condition of the notification dated January 9, 2006, which was issued under section 8 of the Act, was that the requirement of sub-section (4) must be fulfilled. In other words, if the goods are sold to a registered dealer or to Government then as a proof of such sale, the prescribed form mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost amendment 2007 Section 8. Rates of tax on sales in the course of inter-State trade or commerce - Section 8. Rates of tax on sales in the course of inter-State trade or commerce - (1) Every dealer, who in the course of inter-State trade or commerce, - (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government, goods of the description referred to in sub-section (3). Shall be liable to pay tax under this Act, with effect from such date as may be notified, by the Central Government in the Official Gazette for the purpose, which shall be two per cent of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, or, as the case may be, under any enactment of that State imposing value added tax, whichever is lower: Provided that the rate of tax payable under this sub-section by a dealer shall continue to be four per cent, of this turnover, until the rate of two per cent, takes effect under this sub-section. (1) Every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods at specified stages or otherwise than with reference to the turnover of the goods. (3) The goods referred to in clause (b) of sub-section (1) - (a) Omitted. (b) Are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in the telecommunications network or in mining or in the generation or distribution of electricity or any other form of power; (c) Are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; (3) The goods referred to in sub-section (1) - (a) Omitted (b) Are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements laid down in sub-section (4) by the dealer, if it is satisfied that it is necessary so to do in the public interest, by notification in the official gazette and subject to such conditions as may be specified therein direct, (5) Notwithstanding anything contained in this section, the State Government may on the fulfilment of the requirements laid down in sub-section (4) by the dealer, if it is satisfied that it is necessary so to do in the public interest, by notification in the official gazette, and subject to such conditions as may be specified therein direct,- (a) that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter-State trade or commerce, to a registered dealer or the Government from any such place of business of any such goods or classes (a) that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter-State trade or commerce, to a registered dealer from any such place of business of any such goods or classes of goods as Pre-amendment 2007 Post amendment 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne by the authority specified by the Central Government in this behalf. (6) Notwithstanding anything contained in this section, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter-State trade or commerce, to a registered dealer for the purpose of setting up, operation, maintenance, manufacture, trading, production, processing, assembling, repairing, reconditioning, re-engineering, packaging or for use as packing material or packing accessories in a unit located in any special economic zone, or for development, operation and maintenance of special economic zone by the developer of the special economic zone, if such registered dealer has been authorised to establish such unit or to develop, operate and maintain such special economic zone by the authority specified by the Central Government in this behalf. Pre-amendment 2007 Post amendment 2007 (7) The goods referred to in sub-section (6) shall be the goods of such class or classes of goods as specified in the certificate of registration of the registered dealer referred to in that sub-section. (7) The goods referred to in sub-section (6) shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government any goods or", is deleted. As such the sales made to the Government by a dealer are not to be placed at a reduced rate of tax under sub-section (1). Similarly deletion of expression "or Government" from clause (a) in sub-section (5) of section 8 further clarifies that the power given in sub-section (5) is not to be exercised by the State Government in respect of the sales made by a dealer in inter-State trade or commerce to the Government. Looking at annexure 3, which is copy of Notification No. 23/XXVII (8)/Commercial Tax/2005, Dehradun, dated January 9, 2006, it is clear that the list of authorized institutions contained in annexure B to the notification includes State and Central Government agencies and bodies (as mentioned at serial No. 8 of annexure B of said notification). Now in view of the amendment made in the Central Sales Tax Act, 1956, the sale to the State Government cannot be granted exemption under sub-section (5) of section 8. As such, this court does not find any illegality in the impugned notification, rescinding the notification dated January 9, 2006. As far as the argument advanced on behalf of the petitioner, relating to the plea of doctrine of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
