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TMI Blog2020 (10) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act. Thus, it is wrong on the part of the State Government to state that the statute does not provide for reopening of cases which are time barred even though reasonable explanation is provided - In the present case, as the exemption certificate has been granted in the year 2017 only, the petitioner was justified in immediately approaching the Authorities for grant of exemption and his request could not have been turned in the manner and method it has been done by the respondents. The inaction on the part of the Department is bad in law. The assessment orders passed by the Department for four years ie., 2007-08, 2008-09, 2009-10 and 2010-11 deserves to be set aside and are accordingly hereby set aside. It is nobody's case that the exemption certificate has been withdrawn or was erroneously granted and the respondent State has admitted grant of exemption certificate and, therefore, once exemption certificate was granted, the Department cannot take advantage of technicalities, especially when the certificate itself was granted in the year 2017 with retrospective effect. The respondents are directed to confer all benefits to the petitioner in terms of the Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificates were granted by the M.P. Trade and Investment Facilitation Corporation Ltd., granting exemption in respect of payment of entry tax from 23/7/2004 to 8/5/2015 in respect of all three industrial units keeping in the provisions as contained u/S. 10 of the Madhya Pradesh Sthaniya Kshetra Me Maal Ke Pravesh Par Kar Adhiniyam, 1976. As already stated earlier, the certificate was granted on 13/2/2017 and on account of grant of certificate with retrospective effect all entry tax assessment orders also for the year 2004 to 2013 and subsequent assessment orders also upto 2015 became null and void because the exemption was granted for a period of 9 years that too with retrospective effect. The contention of the petitioner is that the Commercial Tax Department was under an obligation to grant 100% exemption of entry tax amount, interest and penalties for the entire period of 9 years in terms of the certificate issued. However, the respondent State has granted exemption only in respect of 5 assessment years i.e., 2004 2005 to 2006 2007 and 2011 2012 to 2012 2013. The petitioner as the re-assessment for four years was not done i.e., 2007 2008 upto 2010 2011 wrote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached the appropriate Court after the exemption was granted. 03. The respondents have stated that the power of reopening of an assessment is provided u/S. 13 of the Entry Tax Act read with Sec. 21 (1) of the M.P. V.A.T. Act, 2002 and on account of the limitation provided u/S. 21, the question of reopening the assessment does not arise. 04. The respondent have further stated that for the year 2004 2005, the order of assessment dated 15/1/2008 was revised vide order dated 18/12/2015 by the revisional authority and the order of reassessment was passed. It has been further stated that the petitioner applied for exemption on 14/7/2017 before the assessing authority on which revision order was passed on 20/7/2017 as the assessing authority himself can not reassess the case without prior permission of the higher authority, so the reassessment order was passed on 31/7/2017 and, therefore, original order of reassessment was passed on 31/7/2017 and, therefore, the application of the petitioner for reassessment being within time limit prescribed by the statute was entertained and exemption was granted. 05. In respect of year 2005 2006 and 2006 2007 the reassessment orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established in the year 2004 is referred by the respondent Department as Principal Unit. Thereafter, in 2009 expansion was carried out and the same is referred by the department as Expansion Unit and in 2010 further expansion was carried out and the unit is known as diversified unit. The State of M.P. in order to promote industrialisaiton and establishment of industries has granted various incentives from time to time under the Madhya Pradesh Udyog Nivesh Samvardhan Sahayta Yojna, 2004 and 2010. Two notifications were issued on 4/4/2010 and 13/10/2010. The petitioner applied for exemption and 100% exemption was granted towards payment of entry tax vide Notification dated 12/3/2017 and exemption certificates were issued in respect of all the three industrial units in pursuance to the provisions as contained under Section 10 of the Madhya Pradesh Sthaniya Kshetra Me Maal Ke Pravesh Par Kar Adhiniyam, 1976. 09. The details of exemptions granted in the matter are reproduced as under : S.No. Date Ref. No. Period 1 13/02/2017 19/Fiscal Incentives/ E.T. /2015 / 107 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or class of dealers, from any provision of the Act as may specified in the notification : Provided that in respect to the period during which the Ordinance, repealed under Section 24 was in force, the retrospective effect may be given from the date of the commencement of the said Ordinance as if the liability to pay tax arose under this Act and for that purpose it shall and shall always be deemed that the provisions of this Act to the extent they correspond to the provisions of the said Ordinance were in force during the material times.] 11. The undisputed facts further reveal that the exemption certificate was granted on 13/2/2017. The undisputed facts also reveal that pursuant to issuance of exemption certificate, the petitioner certainly became entitled for exemption from payment of entry tax as it was granted with retrospective effect i.e., 23/7/2004 and the Commercial Tax Department was certainly under an obligation to grant 100% exemption of entry tax amount, interest and penalties for the entire duration of 9 years period i.e., w.e.f. 2004 2005 to 2012 -2013. The petitioner has made various applications immediately after grant of certificate which are on record da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of entry tax for total 9 assessment years ie., 2004-05 to 2012-13 with retrospective effect ie., w.e.f. 23/7/2004 and, therefore, the respondent Department is certainly under an obligation to abide by the exemption certificates and to provide exemption in letter and spirit of the eligibility certificate. 15. The respondents have carried out the reassessment only in respect of five assessment years ie., 2004-05, 2006- 07 and 2011-12 to 2012-13 and exemption has been granted only in respect of five assessment years. The respondents ought to have re-assessed the assessment years w.e.f. 2007- 08 to 2010-11 also. The petitioner has submitted more than a dozen of applications to the Commissioner for granting exemption in respect of the remaining years and the Commissioner does have the power u/S. 47 of the M. P. VAT Act. The Commissioner is having a power of suo-moto revision also and this power could have been exercised by the Commissioner keeping in view Sec.5 of the Limitation Act. Thus, it is wrong on the part of the State Government to state that the statute does not provide for reopening of cases which are time barred even though reasonable explanation is provided. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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