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TMI Blog2012 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... 654/1989 – the AO was perfectly right in confining the exemption to five years, since annexure A to the extent it granted exemption for the additional two years was a nullity – the assessing authority was justified in passing the assessment order under the Central Sales Tax Act rejecting the claim of exemption beyond five years and finding the assessee's claim for concessional rate under the Central Sales Tax Act to be governed under SRO. No. 1731/1993 – Decided against petitioner assessee. - S.T. Rev. No. 69 of 2008 - - - Dated:- 13-6-2012 - THOTTATHIL B. RADHAKRISHNAN AND VINOD CHANDRAN K. JJ. For the Appellant : E.K. Nandakumar and A.K. Jayasankar Nambiar Senior Advocates, K. John Mathai, P. Benny Thomas and Anil D. Nair For the Respondent : Bobby John, Government Pleader, ORDER:- The order of the court was made by K. VINOD CHANDRAN J.- The petitioner is an assessee under the Kerala General Sales Tax Act, 1963 (for short, the KGST Act ) and is aggrieved by the reduction of the period of exemption, by the assessing officer, as confirmed by the first appellate authority and the Tribunal. 2. The petitioner/assessee is a medium scale industrial unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re A, under SRO. No. 1729/1993 for the liability under the KG ST Act necessarily has to govern the petitioner's liability under the Central Sales Tax Act too; which is intended by the Government under SRO. No. 1730/ 1993. On the above premise, the petitioner has raised three questions of law, all boiling down to the eligibility of the petitioner under SRO. No. 1730/1993 for concessional rate of two per cent on the inter-State transactions for a period of seven years as against the prescription of five years under SRO. No. 1731/1993. 5. The learned Government Pleader would support the impugned orders and urge before us that the petitioner is only entitled to exemption for a period of five years, being covered under SRO. No. 1731/1993. 6. Exemption notifications, as is trite, have to be construed strictly. The claim of the petitioner has to be considered with reference to the specific words and concessions/exemptions provided by the notifications. SRO. No. 1729/1993 defines new industrial unit under clause 11(i) as small-scale, medium or large scale industrial unit set up on or after April 1, 1993 and certified as such by the appropriate authority. It is to be noticed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raordinary No. 1122 dated November 4, 1993 which were not able to avail of a concession contemplated therein for the reason that they were not registered with the Director of Industries and Commerce, the exemption shall be available for a period of five or seven years as the case may be, with reference to the notification under which concession was/is to be granted, from the date of actual availment of the exemption, subject to the monetary limit applicable. The revised certificate in such cases shall be issued by the Secretary, Board of Revenue (Taxes), Thiruvananthapuram, on application by the units. N.B.: Note added by SRO 178/96 dated February 12, 1996 with effect from January 1, 1994. The note indicates that new industrial units set up prior to April 1, 1993 and governed by SRO. No. 654/1989 and those set up after April 1, 1993 governed by SRO. No. 1729/1993, which were not able to avail of concession/exemption for the reason of their not being registered with the Director of Industries and Commerce, the exemption was specifically made applicable; however, only with reference to the period for which the exemption was granted as contained in the respective notifications. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93. This interpretation is amply supported by item 6 in Schedule IV of SRO. No. 1731/1993, which specifically refers to the concessional rate being applicable for a period of five years for new large and medium scale industrial units which started commercial production on or after April 1, 1993 . The distinction, hence, is with respect to the units that were set up on or after April 1, 1993 , and those which started commercial production on or after April 1, 1993 . The petitioner's unit having been set up prior to April 1, 1993 as is evident from annexure A, the benefit of exemption can be conferred only for the period specified under SRO. No. 654/1989 under the KGST Act and the notification which governs the petitioner's claim for concessional rate under the Central Sales Tax Act is SRO. No. 1731/1993. Hence, all the questions of law raised by the petitioner have to be answered against the petitioner and in favour of the Revenue. 9. Though the petitioner has not raised such a question of law, what troubles us is the fact that annexure A has granted exemption for a period of seven years under the KGST Act. No separate exemption order has been contemplated under the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 234 that if a Tribunal has jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 654/ 1989, the power of the authority to grant exemption under the KGST Act for a new industrial unit which was set up prior to April 1, 1993, but after April 1, 1989 was only for a period of five years. Would that make the order a nullity in so far as the grant for an additional two years? Has not the authority in granting two additional years exceeded its jurisdiction as conferred by the relevant notifications? 13. A Division Bench of this court had considered a similar issue arising out of the very same notification, but however, with factual variations in K. Premerajan v. State of Kerala [2008] 14 VST 202 (Ker). The facts relevant to the said decision in brief is that the assessee was granted an exemption order under SRO. No. 1729/1993 by the District Level Committee, effective for the period from July 5, 1997 to July 4, 2002. The assessing officer having alertly detected that the goods dealt with by the assessee falls in the negative list, however, after the period was over, took up the matter with the District Level Committee and also completed the assessment rejecting the claim of exemption. The District Level Committee having reviewed the matter, amended its earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 VST 202 (Ker), however in a different context can be adopted for the present revision. In the matter of industries set up on or after April 1, 1989 and prior to April 1, 1993, the competent authority was conferred jurisdiction as per the notifications on a combined reading of SRO. No. 1729/1993 and SRO. No. 654/1989. But the said jurisdiction extended to grant of exemption only for a period of five years. The grant of exemption for seven years; to the extent of the additional two years, is definitely in excess of the jurisdiction and again cannot be considered as one of irregular assumption of jurisdiction or an error of law committed within the jurisdictional competence. To the extent of the exemption granted beyond the specific period of five years prescribed under the relevant notification, the same was definitely vitiated by lack of jurisdiction or want of jurisdiction. The authority clearly exceeded the jurisdictional mandate of SRO. No. 1729/1993 read with SRO. No. 654/1989. In the circumstances, the assessing officer was perfectly right in confining the exemption to five years; since annexure A to the extent it granted exemption for the additional two years was a nullity. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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