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TMI Blog2024 (5) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... on Fixed Capital Investment for release of IPA. The finding of the Additional Chief Secretary is based on irrelevant materials as the observation of the Finance Department relates to WBIS, 2004 which does not have any manner of application to the case on hand. That apart the finding is based on incorrect interpretation of the relevant clauses of the order dated 02.03.2006. The findings of the Additional Chief Secretary in his order dated 14.02.2019, suffer from perversity. In the case on hand, the State upon being satisfied that ACL is entitled to Special Package of Incentives as a Mega Project, issued the order dated 02.03.2006. Admittedly, IPA was released in favour of ACL for a considerable length of time. The State thereafter did not disburse IPA of the subsequent period(s), which prompted ACL to approach this Court. The stand of the State that IPA has a financial cap as reflected in the order of the Additional Chief Secretary, has not been accepted by this court as will be evident from the observation made herein before. ACL approached the writ court seeking to enforce the order dated 02.03.2006. The said action cannot be said to be tainted with illegality. There is no pleadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial cap for a period of five years and two months from the date of commencement of commercial production. The Director of Industries, West Bengal issued the Certificate of Registration under the WBIS, 2000 to ACL on May 16, 2006 in respect of its Farakka unit, the validity period of which was up to May 15, 2009. The unit claims to have commenced its commercial production at its Farakka unit from May 31, 2007. ACL claims that the unit is entitled to claim incentives for a period of five years and two months from the date of commencement of commercial production i.e., from May 31, 2007 to July 31, 2012. 4. West Bengal Industrial Development Corporation (for short WBIDC ) issued Eligibility Certificate under WBIS 2000 on May 18, 2010 in respect of the cement unit of ACL situated at Farakka. ACL claims that the WBIDC by a letter dated June 13, 2011 sanctioned Rs. 628.22 lakhs for the first year (2007-08), Rs. 1443.41 Lakhs for the second year (2008-09) and Rs. 3518.76 lakhs for the third year (2009-10) towards IPA. The ACL claims that IPA for the periods 2007-08 and 2008-09 has been received in full and only a portion of IPA for the period 2009-10 has been received by ACL. 5. ACL sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest. 9. Mr. Banerjee learned Senior Counsel submitted that Special Package of Incentives granted to ACL vide letter dated 02.03.2006 specifically states that IPA would be without any financial cap. He submitted that the learned Single Judge after considering the special package observed that the appellants herein went on continuously acting on the said special package for more than two years by duly disbursing the subsidies in favour of ACL. He further submitted that the learned Single Judge observed that the special package given to ACL was clear to the effect that there would not be any financial cap by way of adjustment against VAT and CST liability of that year. Mr. Banerjee also placed reliance upon a decision of this Court in MAT 1965 of 2022 in the case of State of West Bengal and Another vs. Birla Corporation Others delivered on 09.04.2024 in support of his contention that the IPA as per the special package of incentives was without any financial cap. 10. Heard the learned advocates for the parties and perused the materials placed. 11. This Court shall first decide as to whether the Special Package of Incentives granted in favour of ACL vide order dated 02.03.2006 stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit has to apply before the Commissioner, Commercial Taxes requesting him to certify the total amount of tax paid during the year on sales and purchase in respect of which the application has been made. Upon receipt of such application the Commissioner, Commercial Taxes, W.B, after verification, would issue a certificate to the MD, WBIDC certifying the tax paid by the unit on its sales during the year in question. The MD, WBIDC Ltd., on receipt of the aforesaid intimation, will issue cheques for an amount of 75% of the Tax paid by the Unit on its sales in the previous year as IPA. The system would continue for the number of years for which the IPA will be available. It was also specified therein that the benefits will be available for a period as detailed in the enclosed statement A. 18. It is also evident from the said approval letter that it was issued with the concurrence of the Finance Department. 19. After going through the special package of incentives, this Court finds that IPA was to be calculated and released in the following manner. (i) IPA would be 75% of the VAT and CST paid in the year previous to the year during which IPA would be released. (ii) IPA would be released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or disbursement of incentive in excess of Fixed Capital Investment. 26. The finding returned by the Additional Chief Secretary in its order dated 14.02.2019 is based on the observation of the Finance Department dated 28.12.2018. This Court finds that such observation of the Finance Department was in the context of specification of overall financial limit in Para 20 (e) (iii) of WBIS, 2004 that the total incentive shall not exceed 100% of the FCI in any case. 27. The Additional Chief Secretary after quoting a portion of the observation of the Finance Department dated 28.12.2018 in his order dated 14.02.2019 observed that ACL was not entitled for incentive in excess of FCI limit at any point of time. 28. ACL has not claimed any benefits under WBIS, 2004. The issue that arises for consideration is whether IPA as per the approved package for Mega Project in favour of ACL can be disbursed without any financial cap. Such issue has to be answered by considering the special package approved in favour of ACL vide letter dated 02.03.2006 only and not by the terms of WBIS, 2004. 29. Para 18 of WBIS, 2000 deals with Mega Projects and starts with a non obstante clause as stated hereinbefore. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to WBIS, 2004 which does not have any manner of application to the case on hand. That apart the finding is based on incorrect interpretation of the relevant clauses of the order dated 02.03.2006. The findings of the Additional Chief Secretary in his order dated 14.02.2019, suffer from perversity. 36. This Court also had the occasion to deal with a Special Package of Incentives for a Mega Project containing more or less identical terms and conditions, in MAT 1965 of 2022 in the case of State of West Bengal and Another vs. Birla Corporation Ltd. Others delivered on 09.04.2024. In the said decision it was held that there is no financial cap of IPA. 37. Now this Court shall proceed to deal with the contention of the State that a direction to release IPA over and above FCI would be against public interest. 38. Clause 18 of the WBIS, 2000 provides for granting special package of incentives under the said scheme to a Mega project. Special Package of Incentives was granted to ACL by order dated 02.03.2006. The terms and conditions of special package have been specifically mentioned in the said Order. It is not in dispute that ACL commenced commercial production from May 31, 2007. Admittedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o satisfy the court that the said order contains certain terms and conditions which are so unfair and unreasonable that they shock the conscience of the Court. There is no pleading in support of the stand of the State that certain terms are opposed to public policy. Except the submission advanced at the Bar, no materials in support thereof have been produced before this Court. The Additional Chief Secretary, in his order dated 14.02.2019, only stated that the interpretation should not be contrary to the public policy of the State without disclosing as to how release of IPA over and above FCI limit would be opposed to public policy. 45. For the reasons as aforesaid, this court is not inclined to accept the argument of the learned Advocate General that release of IPA over and above the FCI limit would be opposed to public policy and that the same is against public interest. 46. State extended the Special Package of Incentives in favour of ACL. ACL claimed the benefits under the said package including IPA and the State released IPA for a considerable period of time. To the mind of this Court, the State, after acting upon the order dated 02.03.2006 should not be allowed to resile from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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