9911796707
TMI Blog2007 (10) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... icy-1995 under which Tourism was accorded the status of an industry and a package of scheme of incentive for tourism projects, for the period 1995 - 2000 came to be announced vide Resolution No. NTP-1095/1983-C dated 20.12.1995 passed by the Information, Broadcasting and Tourism Department, Government of Gujarat. Under the said scheme of incentives, a tax holiday of 5 to 10 years was made available to newly set up tourism units as well as expansion of existing Tourism units. The scheme of incentives granted tax holidays to expansion of existing units, for a period of 5 years, in respect of the following taxes :- (1) Exemption from Sales Tax (2) Exemption from Turnover Tax (3) Exemption from Electricity Duty (4) Exemption from Luxury Tax and (5) Exemption from Entertainment Tax. These exemptions are given for a period of 5 years to expansion of existing projects, subject to the condition that the existing tourism unit increases its investment in fixed capital or capacity by atleast 50% or more. 3. It is also the case of the petitioner Company that the petitioner Company met with the criteria of the scheme of incentives and applied for registration under the said Scheme. A tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 to reallocate the incentives as suggested earlier or as an alternative to extend the period upto 5 years in respect of electricity duty. 5. Despite the correspondence and representations made by the petitioners, the respondent No. 2 informed the petitioners vide his letter dated 16.07.2002 that the case of the petitioners was placed before the State Level Committee and the State Level Committee had rejected the modification of eligibility Certificate as requested by the petitioners. Being aggrieved by the said decision, the petitioners filed Special Civil Application No. 12326 of 2002 before this Court. In the said petition, the respondent No. 3 had filed reply contending that the benefit of remission of electricity duty is granted from the date of sealing of meters at site as per Condition No. 5 of Notification dated 05.04.1997 issued by Energy and Petrochemical Department, Government of Gujarat. Condition No. 5 of the said Notification provides for installation of electric meters for expanded portion in case of an expansion of existing unit. According to the petitioner Company, the said condition does not say or provide that the eligibility for remission should be to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Certificate curtailing the period of eligibility for remission of electricity duty with effect from 12.01.2001. Despite the fact that the respondent No. 3 informed the GEB about installation of meters by the petitioners, the GEB did not take required action completely ignoring the requests of the petitioners and respondent No.3. The respondent No. 3, therefore, once again vide letter dated 05.12.2000 brought it to the notice of the GEB that the details as asked for by the respondent No. 3 vide letter dated 02.06.1999 were still not furnished and, therefore, once again requested to furnish the same immediately. After prolonged correspondence and several requests, the Officers of GEB ultimately visited the petitioner's premises on 12.01.2001 for the purpose of testing and sealing the meters installed by the petitioners in respect of the expanded area. It was in this view of the matter that the respondent No. 3 issued the impugned Certificate granting benefit of remission of electricity duty only from 12.01.2001 instead of 01.12.1998 i.e. the date of Eligibility Certificate. 7. Mr. Dave further submitted that the impugned order is exfacie bad in law, violative of the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents that the petitioner Company is not an eligible tourism unit. He has, therefore, submitted that there is no reason or rationale for issuing a certificate by respondent No. 3, in respect of exemption / remission of electricity duty for the period from 12.01.2001 to 28.02.2003. The petitioner Company was an eligible unit for a period of 5 years to avail the tax benefit to the extent of ₹ 84.03 Lacs which includes ₹ 23.53 Lacs by way of electricity duty, by virtue of eligibility certificate issued on 16.11.2000 by respondent No. 2. Despite this, the respondent No. 3 who was not an appropriate authority to grant eligibility has curtailed the period of electricity duty exemption / remission from five years to twenty five months only, thereby denied the petitioner Company the benefit of electricity duty exemption / remission to the tune of ₹ 18.53 Lacs. 8. Mr. Dave has further submitted that in terms of para 2 (b) of Notification dated 05.04.1997, an eligible unit is required to apply to the Commissioner of Electricity Duty for exemption / remission within 90 days from the date of receipt of eligibility Certificate. The petitioner Company had admittedly applied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action in that behalf. However, respondent No. 3 despite being aware of all timely actions taken by the petitioners in fulfilling the procedural requirements as well as the laxity and delay, on the part of GEB, issued the impugned Certificate curtailing the eligible period for remission of electricity duty. 10.Mr. Dave has further submitted that the respondent No. 3, before issuing the impugned Certificate ought to have appreciated that the petitioners by getting the separate meters installed, had complied with condition No. 5 of Notification dated 05.04.197 published by Energy & Petrochemical Department. The petitioners, therefore, should have been declared eligible for remission of electricity duty at least from 19.02.1999. However, on account of grave delay committed by GEB in testing and sealing the separate meters installed by the petitioners, on 19.02.1999, the petitioners could not be made to suffer by curtailing the period of eligibility in respect of remission of electricity duty making the same available from the day GEB tested and sealed the meters i.e. for a period of 25 months only i.e. from 12.01.2001 to 28.02.2003. He has, therefore, submitted that it was incumbent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2000 for Tourism Project) held on 29.08.2005 at Gandhinagar for reallocation, change in proportion and adjustment of incentive in the tourism policy in case of the petitioner. The State Level Committee rejected the reallocation. The Committee had decided that once the final eligibility certificate is issued after the unit exercised the option of proportion for which it wants the availment of taxes exemption, the proportion of the taxes shall not be changed thereafter. The scheme itself was floated to see that all the areas are given equal incentive and exemption and there was no polity in the whole scheme to make adjustment or reallocation of the incentive granted to the petitioner. Therefore, the decision of the State Level Committee rejecting the application of the petitioner is proper and should not be interfered with. One of the conditions of the scheme, namely, New Package Scheme of Incentive for Tourism Project 1995-2000, provides in its condition (e) under the head of Condition No. 12 - other conditions that when all matters, interpretation, dispute or contention under the Scheme will be referred to the State Level Committee and decision of the State Level Committee will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned advocate appearing for the petitioners. There is no dispute about the fact that the State Government had declared "New Tourism Policy - 1995" wherein tourism had been accorded the status of an industry, with a view to make available all fiscal and non-fiscal incentives, benefits, reliefs and concessions available to industries. The Scheme introduced by the State Government was known as "New Packages Scheme of Incentives for Tourism Projects - 1995 - 2000". The said Scheme came into operation with effect from 01.08.1995 and remained in force for a period of five years upto 31.07.2000. Under the said Scheme, a new Tourism unit or an expansion of an existing unit was made eligible for incentives subject to conditions laid down in the Resolution dated 20.12.1995 passed by the State Government, Information, Broadcasting and Tourism Department. As per the said Scheme, all tourism projects which confirmed to the list given at Appendix B and also confirmed the detailed specifications were to be included as eligible units for the purpose of incentives under Tourism Package Incentive Scheme for Tourism 1995 - 2000. Appendix B, inter alia, contains hotel as one of the tourism units. 15.U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssionerate of Tourism to revise the allocated eligible amount and transfer some funds to sales tax duty as well as Luxury tax. The petitioner thereafter pursued the said matter with the respondent authorities time and again. However, the petitioner's request was not acceded to. The petitioner had also made representation to the State Level Committee pursuant to the directions issued by this Court in Special Civil Application No.12326 of 2002 decided on 24.02.2005. The said representation was rejected by the State Level Committee on 13.09.2005 without assigning any reason whatsoever. The said communication merely refers to that the State Level Committee has decided not to consider the petitioner's request for change in proportion and adjustments of incentives given to the petitioner's unit for the Tourism Policy 1995 - 2000. 17.In the above background of the matter, if we examine the controversy raised before the Court and appreciate the respective submissions raised by the parties, it would be clear that there was no justification on the part of the respondent authorities to reduce the period of eligibility. It is true that the Eligibility Certificate granted by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed only on 12.01.2001 and because of that, the eligibility period was reduced from five years to 25 months only. The respondents are not justified to reduce this period after having granted tax incentives and on that basis, the petitioner had incurred certain expenses and made huge investment. The petitioner had acted on the basis of assurance given by the respondent authority and hence, it is not just and proper for the respondent authority to reduce the said period especially when the petitioner was not at fault. 18.Even the representation made by the petitioner was also not considered by the State Level Committee in its true perspective and no reasons whatsoever were assigned while rejecting the petitioner's representation. 19.Taking overall view of the matter and considering the documents on record as well as the provisions of the Scheme, we are of the view that the petitioner is entitled to the full sanctioned amount of electricity duty as a remission. We, therefore, allow this petition and hold that the petitioner is entitled to utilization of full benefit of exemption / remission of electricity duty for the period from 01.12.1998 to 28.02.2003. Since the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
