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TMI Blog2015 (3) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... accrued to the petitioner cannot be taken away. Thus, the Supreme Court held that the amendments carried out could not take away the rights of the petitioner with the retrospective effect. Here, the exemption, which was granted already earlier notification was available to the petitioner up to 4.11.2006, but vide notification dated 15.9.2006 to 31.9.2006, it was restricted up to 31.3.2006, meaning thereby, for a period of near about six months, petitioner has been liable for payment of tax for which there was no power with the State Government to withdraw such exemption with retrospective effect. The aforesaid exemption could not have been withdrawn by the State Government vide notification dated 15.9.2006 with retrospective effect. Therefore, Notification dated 31.3.2006 and 15.9.2006, insofar as it relates to the petitioner only, restricting the exemption of notification till 31.3.2006 is not sustainable under the law and the petitioner who was extended the benefit of exemption from payment of tax till 15.9.2006 shall be entitled to get the aforesaid exemption. - Decided in favour of petitioner - W.P.No.11097/2012 - - - Dated:- 16-3-2015 - P.K. Jaiswal and D.K. Paliwal, JJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.9.1995 under Section 17 of the Commercial Tax Act, 1995, was issued exempting hotelier from payment of tax under Section 9 of the Commercial Tax Act on the sale of food and other articles or human consumption or any non alcoholic drink for a period of 10 years from the date of operation later on changed to date of issue of eligibility certificate . 7. Subsequently, the notification Notification No.A-3-38-2000-ST(55) and (56) dated 5.8.2000 were issued under Luxury Tax Act and Commercial Tax Act providing exemptions to the hoteliers, but such exemptions were optional at the hands of the hoteliers. The aforesaid exemption is allowable to the hotel, which has to be a registered dealer under the Commercial Tax Act, which had commenced their commercial operation on or before 31.1.1995. The duration of exemption was prescribed to be from 31.1.1995 to 31.1.2005. Accordingly, case of the petitioner under the aforesaid notification was considered and eligibility certificate was issued in its favour by the competent authority of the Commercial Tax Department dated 17.7.2001, (Annexure P/4). The petitioner was held eligible to avail the facility of exemption from payment of tax pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to have been continued with the amendments accordingly. 3. (1) The facility shall be available for the unexpired period of eligibility certificate or to the extent of balance of cumulative quantum of tax as on 1st April, 2006,whichever is earlier; (2) The dealer shall make purchases from registered dealers after payment of tax and be eligible to collect the tax payable on the goods, including by-products and waste products, manufactured and sold within the State; (3) If the goods manufactured are the goods including by-products and waste products, specified in Schedule II of the VAT Adhiniyam, the dealer shall compute his tax liability by deducting input tax rebate from tax collected on sales within the State and be eligible to retain the amount of tax collected, which is in excess of the input tax rebate. The amount so retained shall be included in computation of cumulative quantum of tax benefit. 4. The dealer shall continue to avail the facility of exemption from payment of tax in respect of the goods, including by-products and waste products, manufactured and sold in the course of inter-State trade or commerce. The amount so exempted shall be included in comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequent notification dated 15.9.2006 has been issued only for the purpose of substituting the words 'or hotels' after words 'industrial unit' in para 1 of the notification dated 31.3.2006. Thus, dealers who are continuing to avail facility of exemption, which availed the facility over the unexpired period of eligibility certificate and they shall also be eligible to first adjust balance of input tax rebate if any, against any other tax liability of self and to transfer remaining balance for adjustment against tax liability of any other registered dealer, if desired. A hotelier who is continuing with the facility of exemption as on 1.4.2006 will continue to collect tax from its customers, and to compute his tax liability by taking input tax rebates from the tax collected on sales. Further, he will be eligible to retain tax collected, which is in excess of its input tax rebate and the amount so retained shall be included in computation of cumulative quantum of tax benefits. 12. It is submitted that curtailing exemption upto 31.3.2006 instead of 4.11.2006 by issuing notification dated 31.3.2006 and 15.9.2006, making retrospective amendment is without authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1.4.2006 will continue to collect tax from its customers, and to compute his tax liability by taking input tax rebates from the tax collected on sales. Further, he will be eligible to retain tax collected, which is in excess of its input tax rebate and the amount so, retained shall be included in computation of cumulative quantum of tax benefits. 16. In reply, it is submitted that against the impugned order of assessment dated 22.6.2009, the petitioner had preferred an appeal before the Deputy Commissioner of Commercial Tax, Indore Division under Section 46 of the VAT Act and the said appeal has already been decided on 22.4.2011, even before filing of the present petition. The petitioner has suppressed this fact in the writ petition. 17. On merits, it is submitted that from 1.4.2006, the eligibility certificate granted to the petitioner was modified allowing the petitioner to claim exemption and input tax rebate instead of total exemption under the previous notification. 18. It is further submitted that against the appellate order dated 22.4.2011, the petitioner has still alternative statutory remedy of filing of second appeal under Section 46 (2) before the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute can be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act by a delegated legislation the right accrued to the petitioner cannot be taken away. Thus, the Supreme Court held that the amendments carried out could not take away the rights of the petitioner with the retrospective effect. In the case in hand, the exemption, which was granted already earlier notification was available to the petitioner up to 4.11.2006, but vide notification dated 15.9.2006 to 31.9.2006, it was restricted up to 31.3.2006, meaning thereby, for a period of near about six months, petitioner has been liable for payment of tax for which there was no power with the State Government to withdraw such exemption with retrospective effect. The aforesaid exemption could not have been withdrawn by the State Government vide notification dated 15.9.2006 with retrospective effect. 24. In the result, this petition is allowed. Notification dated 31.3.2006 and 15.9.2006, insofar as it relates to the petitioner only, restricting the exemption of notification till 31.3.2006 is not sustainable under the law and is hereby quashed. The petitioner who was extend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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