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TMI Blog2018 (3) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated 16.11.2015 as also the recovery certificate number 1532 MOD 0000010 dated 18.5.2015 sent by SMS, a copy of which is anneuxre 5 to the petition. A further mandamus has been sought restraining the respondents from taking any coercive action for recovery of any sale tax dues until and unless a final decision is taken by respondent no. 3 on a representation dated 4.6.2015 (anneuxre 8 to the petition). The petitioner company alleges that it has been declared sick by the order of the BIFR dated 21.4.2008 and on the same date a scheme for rehabilitation was sanctioned mentioning 31.3.2008 as the cut of date. The scheme vide Clause 12.7.5 specifically provides for the waiver of interest and penalties of sales tax dues in respect of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made against it without the previous sanction of the BIFR; ii) The amendment to the scheme and the addition of the words "to consider" in the relevant clause of the scheme would not give any discretion to any authority to deny the privilege granted which is mandatory in nature; iii) Even the subsequent order of the BIFR dated 23.2.2010 discharging the company from the purview of the SICA/BIFR and declaring that the company has ceased to be a sick industrial undertaking does not affect the rights of the company which had accrued to it as the said order saves the right of the petitioner company in respect of the unimplemented provisions of the scheme and provides that the privileges granted will continue for the unexpired period of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany was declared to be sick by the BIFR on 21.4.2008 and a rehabilitation scheme (SS-2008) was sanctioned on 31.8.2008. The tax dues sought to be recovered by means of the impugned recovery are in respect of the period prior to the cut of date 31.3.2008 mentioned in the aforesaid scheme. Section 22 of the SICA clearly provides that no proceedings for distress or like against any of the properties of the company and no suit for recovery of money shall lie or be proceeded with except with the consent of the Board or the appellate authority if in respect of that company an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or a sanction scheme is under implementation. In Tata Davi Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2 (B) of the order of the BIFR dated 23.2.2010 which is in the nature of a saving clause. The issue with regard to addition of the words "to consider" in clause 12.7.5 of the scheme would also not affect the right of the petitioner company in this regard. A Division Bench of the Madras High Court in the case of Commissioner of Income Tax Vs. M/s Tube Investments of India vide judgment dated 4.1.2012 came to answer a similar question with regard to use of the words "to consider" while answering the following substantial question of law:- " Whether on the facts and circumstances of the case, the tribunal was right in holding that the BIFR's recommendation to the department to consider granting of exemption from the provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner company filed under Section 38 of the Act remains unattended and pending with the Principal Secretary. It does not say that the representation has been rejected. It is not an order rejecting the representation. Sri C.B. Tripathi at this juncture submits that the Principal Secretary would take appropriate decision on the representation of the petitioner filed under Section 38 of the U.P. Trade Tax in accordance with law as early as possible. In view of the above circumstances as the request of the petitioner company for waiver/deferment of tax dues in the wake of it being declared sick and the subsequent abandonment of it and the repeal of the SICA is under consideration, there appears to be no justification on part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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