9911796707
TMI Blog2018 (6) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 250 lakhs towards the principal amount. That the respondent-authorities published a Government Resolution dated 12.05.2004, whereby a Scheme was introduced for providing relief and concessions to the sick industrial companies registered with the BIFR under the provisions of the Sick Industrial Companies (Special Provision) Act, 1985. As per Clause 1.1 of the said Scheme, the benefit of the said Scheme shall be applicable to only those Companies declared sick by the BIFR or to those small-scale and Non-BIFR Sick Viable Companies registered with GBIFR. It appears that so far as the petitioner is concerned, the petitioner applied for registration as a Sick Unit in the year 2006 and as such, was declared as Sick Unit in the year 2008. The petitioner filed an application dated 10.08.2006 with the Deputy Industries Commissioner, Gandhinagar, for registering the petitioner-Unit with GBIFR to avail the benefit of the Government Resolution dated 12.05.2004 under Scheme-1, Option-1, viz. Deferment Scheme. 2.2 It is the case on behalf of the petitioner that pending the said application with respect to registration of the petitioner as GBIFR Unit, the petitioner, under verbal instructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued in July 2010 and the application of the petitioner came to be rejected. It is further the case on behalf of the petitioner that thereafter, the State introduced a new Resolution dated 15.07.2010. Paragraph-3 of the said Scheme relates to reliefs and concessions under the OTS Scheme reads as under: " 3.0 Relief under OTS Scheme : 3.1 A sick unit, which is required to make payment of any outstanding dues under this OTS scheme may give option to make payment of such outstanding dues in the manner stipulated below: Option Period during which amount of outstanding dues shall be paid Down payment Relief (1) (2) (3) (4) 1 If a sick unit makes entire payment of all the outstanding dues within six months of the order by the competent authority 10% Remission of the entire amount of interest, penal interest and penalty. 2 If sick unit makes entire payment of all the outstanding dues within 18 months of the order by the competent authority 10% Remission of entire amount of interest, penal interest and -penalty. However, a unit has to pay simple interest at nine per cent. on the outstanding principal amount payable from the date of order issued under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that thereafter, the Joint Commissioner of Industries, vide letter dated 21.04.2014, sought for consent from the petitioner to pay its outstanding sales tax principal dues to the tune of Rs. 250 lakhs under the Government Resolution dated 15.07.2010. That thereafter, the Commissioner of Industries vide order dated 11.07.2014 granted the relief and concession under the Government Resolution dated 15.07.2010 to the petitioner approving the proposal to settle the Government dues with remission of the entire amount of interest, penal interest and penalty and payment of principal and other amount as on 31.03.2010 as per Option-1 viz. within six months' time period as per the Government Resolution dated 15.07.2010. 2.8 That as per the order dated 11.07.2014, for availing the benefit of the Government Resolution dated 15.07.2010, the petitioner was called upon to pay a total sum of Rs. 289.37 lakhs as under: Sl. No Departments Outstanding as on March 31, 2010 Amount payable (principal dues) Remission amount (interest, penal interest and penalty) 1 Commercial Tax Department 496.46 250.00 246.46 2 Electricity duty outstanding dues 82.59 39.37 43.22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Settlement (OTS) Scheme as a small-scale industry unit is illegal, contrary to law and the Scheme contained in the Government Resolution. 4.1 It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the petitioner, that pending its application before the GBIFR, on verbal instructions of the Sales Tax Officer, Bharuch, and in order to avoid coercive recovery action, the petitioner started making payment in installments on "on account" basis with the Sales Tax Officer, Bharuch, from 16.08.2006 to 25.02.2008 towards the Sales Tax Deferment amount and the same was credited by the Sales Tax Officer, Bharuch, accordingly. It is submitted that the said payment was made towards the principal amount. It is submitted that there is no provision under the law which entitles the respondents to adjust the payment towards interest first despite there being a specific direction in the Challan to adjust the payment towards principal. It is submitted that therefore, respondent No.2 had no authority to adjust the excess amount paid to the tune of Rs. 79.79 lakhs towards interest, more so when it was specifically conveyed by the Commissioner of Industries to respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Shri Chintan Dave, learned Assistant Government Pleader that even when the petitioner deposited the amount of Rs. 79.79 lakhs which according to the petitioner was deposited for the period between 16.08.2006 to 25.02.2008, the petitioner was not even declared as Sick Unit under the GBIFR. Therefore, any payment made prior thereto, i.e. prior to the registration of Sick Unit under the GBIFR was required to be dealt with and adjusted as per the provisions of the Gujarat Sales Tax Act and therefore, the amount of Rs. 79.79 lakhs paid by the petitioner have rightly not been adjusted against the principal dues. 5.3 It is further submitted by Shri Chintan Dave, learned Assistant Government Pleader that determination of the principal amount as on 31.03.2010 by the appropriate authority at Rs. 250 lakhs therefore is absolutely just and proper and as per the definition of "outstanding dues" contained in the Scheme. It is submitted that therefore, the petitioner shall not be entitled to refund of Rs. 79.79 lakhs, as claimed. Making above submissions, it is requested to dismiss the present petition. 6. Heard learned counsel for the respective parties at length. 7. At the outset, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the case on behalf of the petitioner that the amount of Rs. 79.79 lakhs paid by it was required to be adjusted against the principal dues. However, the aforesaid shall be contrary to the provisions of Section 47(4B) of the Gujarat Sales Tax Act, 1969, which provides that where a dealer is liable to pay interest under sub-section (4A) and he makes payment of an amount which is less than the aggregate of the amount of tax, penalty and interest, the amount so paid shall be first applied towards the amount of interest, thereafter the balance, if any, towards the amount of penalty and thereafter the balance, if any, towards the amount of tax. In the present case, admittedly, the amount of penalty and interest was higher than the payment made, therefore, the same was first required to be adjusted towards the penalty and interest. After adjusting the same towards penalty and interest liability as per the "outstanding dues" defined in the Government Resolution, the principal amount was required to be considered which as such was Rs. 250 lakhs. It is required to be noted that even as per the final order, the amount of interest is considered after deducting Rs. 79.79 lakhs. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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