9911796707
TMI Blog2008 (9) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries established and going for expansion are made entitled to various subsidies. As per clause 9 of the Scheme of 2003, the entitlement to subsidy is to be decided by the State Level Screening Committee or the District Level Screening Committee, as the case may be. The Industries Department is the nodal co-ordinating, monitoring and implementing department and any matter pertaining to interpretation of any clause of the Scheme of 2003 is required to be referred to the Finance Department of the State of Rajasthan. In the writ petition it is asserted that the petitioner-company invested a huge amount of ₹ 860 lacs while implementing extensive expansion programme and, therefore, the petitioner-company is entitled to the benefit of interest subsidy under the Scheme of 2003. The District Level Screening Committee accordingly in its meeting dated March 28, 2007 declared the petitioner-company eligible under the category of expansion as per the Scheme of 2003. For the said purpose, entitlement certificate, annexure 2, dated April 9, 2007 was issued in favour of the petitioner- company. The petitioner-company filed an application on April 13, 2007 before the Commercial Taxes Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied the legal position and submitted that the amount of ₹ 15,85,345 disbursed vide order dated August 4, 2007 was absolutely in consonance with the provisions of the Scheme. So also, there is no express provision for review in the Scheme. The petitioner has placed on record its reply dated April 10, 2008, being annexure 9 to the writ petition. However, suddenly the petitioner received an order dated May 15, 2008 on May 28, 2008 whereby respondent No. 3 has withdrawn the order dated August 4, 2007 issued by his predecessor-in-office and further raised demand of interest subsidy of ₹ 15,85,345 while also levying interest for the period intra random for ₹ 1,28,739. The said order is placed on record as annexure 10 to the writ petition. According to the petitioner, bare perusal of the aforesaid order, annex- ure 10, dated May 15, 2008 shows that respondent No. 3 has passed the order with pre-conceived mind and notion in the mechanical manner. The impugned order is ex facie against the principles of natural justice inasmuch as respondent No. 3 has not even afforded any opportunity of hearing to the petitioner. Therefore, the same deserves to be quashed and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax payable. Such stand, according to learned counsel for the petitioner, is totally untenable and in clear misreading of the provisions of the Scheme of 2003. The learned counsel for the petitioner while inviting attention of the court towards section 4 of the Rajasthan Value Added Tax Act, 2003 submitted that as per definition of "tax payable" in the Act of 2003, "tax payable" by a dealer shall be at such point or points as may be prescribed in the series of sales by successive dealer and shall be levied on the taxable turnover of sale of goods specified in the Third Schedule to Sixth Schedule at the rate as mentioned in the Schedule. As per the petitioner, the input-tax credit is the tax paid on purchases which has nothing to do with the tax collected on the sales and sales tax payable by an assessee and, therefore, the interest subsidy is undisputedly linked with the tax payable on sales only. The learned counsel for the petitioner vehemently contended that respondent No. 3 has imported the term "net tax payable" to suit his own whims which is not permissible under the Scheme of 2003. Therefore, the impugned order dated May 15, 2008 is ex faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in support of his contentions. It is submitted that in the case of Harbhajan Singh v. Karam Singh reported in AIR 1966 SC 641, the apex court held that in the absence of there being express provision of review the authority cannot review its previous order. Similarly, in the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji reported in AIR 1970 SC 1273, it is held that the power of review is not an inherent power and it must be conferred by law either specifically or by necessary implication. It is, therefore, submitted that the impugned order dated May 15, 2008 whereby order dated August 4, 2007 has been cancelled deserves to be quashed and set aside and for the aforesaid reasons order dated August 4, 2007 passed by the predecessor-in-office of respondent No. 3 deserves to be restored. Per contra, learned counsel for the respondents while filing reply submitted that the predecessor-in-office of respondent No. 3 wrongly sanctioned the benefit of interest subsidy and the said order was not in consonance with the provisions of the Scheme. Therefore, it was felt necessary to rectify the mistake committed by the predecessor-in-office of respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that any rectification of mistake is permissible and even that power can be exercised by the authority suo motu and, in this case, it has rightly been exercised by the present officer who is on the chair. Therefore, no interference is warranted in this case and the writ petition deserves to be dismissed. However, in the rejoinder, it is submitted by the petitioner that without admitting even if it is assumed that the doubt or apprehension prevailing in the mind of the assessing authority had some substance, it was incumbent upon him to have the same referred to the Finance Department of the State Government as per clause 11 of the Scheme. In the rejoinder, it is denied that the Commercial Tax Officer is the nodal officer for the Scheme. The machinery provisions are incorporated by reference and therefore provisions of the Rajasthan VAT Act are not applicable. According to the petitioner, a perusal of the Scheme shows that it is a Scheme floated by the State Government for the benefit of industries and there is no applicability of the Rajasthan VAT Act or Rajasthan Sales Tax Act either by express provision or intendment. In this view of the matter, the order impugned cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty appears to have passed the impugned order in arrogance of having superior wisdom than his predecessor-in-office. Perusal of the order impugned manifestly shows that not even the provisions of law which have been taken into consideration have been mentioned. Moreover, when specific plea is taken by the petitioner disputing the stand taken by the respondent, then, there is no power left under the Scheme to the respondent-authority to review the order passed by his predecessor-in-office because as per clause 11 of the Scheme of 2003 it requires to be referred to the Finance Department of the State Government. At the time of arguments, attention of the court was invited by learned counsel for the respondents towards the provisions of section 33 of the Rajasthan VAT Act, 2003 whereunder there is provision under the head "rectification of mistake". In my view, when the Scheme of 2003 itself consists of the provision for the procedure then the matter was to be decided in accordance with the provisions of the Scheme which is introduced with a view to providing investors an attractive opportunity to invest in the State of Rajasthan. Even if the respondent-authority in its wisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
