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TMI Blog2025 (2) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificates applied under the relevant provisions of the Industrial Policy of 2008 - rejection of eligibility certificates without due and proper appreciation of the facts and materials available before the respondent-Department of Industries - industrial unit was "non-functioning" or not - validity of assessments made by the Department of Finance and Taxation, during the pendency of eligibility certificate applications. Whether the rejection of eligibility certificates by the Department of Industries and Commerce under the Industrial Policy of Assam, 2008, on the grounds of being "non-functioning," was justified? - HELD THAT:- The period of validity of the Industrial Policy of 2008 was for a period of five years with effect from 01.10.2008 till 30.09.2013. The eligibility criteria as per the said Policy was all new units as well as existing units which go in for substantial expansion and which had commenced commercial production within the period of validity will be eligible for the incentives from the date of commencement of commercial production for the period applicable for each incentive. In the said Industrial Policy of 2008, various fiscal incentives such as interest subsidy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsidy may be 5 years, the scheme nowhere provides that only if a new industrial unit continues such manufacturing activity for a period of 5 years that it can claim the transport subsidy. Therefore, even if, as pointed out by the respondents, the petitioner at some later point of time after commencing its production got engaged into the same activity as a job worker, this would not amount to breach of any of the eligibility conditions of the scheme. The aforesaid two judgments of this Hon'ble Court and that of Tripura High Court are squarely applicable in the present case. Whether the doctrine of promissory estoppel applies to prevent the government from denying benefits promised under the Industrial Policy of Assam, 2008, after the petitioners had altered their position based on those promises? - HELD THAT:- Under the doctrine of promissory estoppels where the Government has made a promise and the prose relying on the promise has altered it's position to its detriment the Government is not exempt from it's liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance and Taxation, during the pendency of eligibility certificate applications, were valid? - HELD THAT?- The assessment orders itself reflects that the books of accounts etc were examined and pursuant to which the assessment orders and the consequential demands were raised. Therefore, in the facts of the present case, besides the other departments which had the occasion to examine the papers submitted for establishment of the industry as well as assessment order and the consequential demands raised by the Finance Department, the fact remains that there is no mala fide alleged against the industry or unit by the respondent authorities. There is also no allegation that undue advantage has been sought to be taken by the industries in respect of Industrial Policy concerned. Under such circumstances, the department of Finance as well as the Industries Department, being representatives of different department but a part of the same Government and a constituent members of the State Level Committee,- the State Level Committee being the mouth piece of the Government in so far as the Industrial Policy is concerned they must speak in one voice by taking into various views and evaluati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive eligibility certificates which they had applied for under the relevant provisions of the Industrial Policy of 2008. The petitioners are aggrieved that without due and proper appreciation of the facts and materials available before the respondent-Department of Industries, their claim for eligibility certificates were rejected. Consequently they being aggrieved, they have approached this Court praying for appropriate Writ Direction or Order for setting aside their respective rejection orders for grant of eligibility certificates as well as consequential order to the respondents to issue the eligibility certificates and/or otherwise consider them eligible for availing the benefits under the Industrial Policy of Assam 2008. 3. In so far as the writ petitions being W.P.(C) No. 1828/2019; W.P(C) No. 2138/2019; W.P(C) No. 5954/2018; W.P(C) No. 5937/2018; W.P.(C) No. 5957/2018; W.P.(C) No. 2111/2019; W.P.(C) No. 1843/2019; W.P(C) No. 2096/2019; W.P(C) No. 6027/2018; W.P(C) No. 5960/2018; W.P(C) No. 5917/2018; W.P(C) No. 1860/2019; W.P(C) NO. 5980/2018; W.P(C) No. 5932/2018 and W.P(C) No. 5931/2019 are concerned, the petitioners therein have assailed the assessments conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate. W.P(C) No. 5141/2018 (Raj Coke Industries) This writ petition has been filed challenging the order dated 05.05.2018 issued by the Commissioner of Industries & Commerce, Udyog Bhawan, Assam holding the industrial unit of the petitioner firm to be ineligible for grant of eligibility certificate under the Industrial Policy of Assam, 2008 as the said industrial unit was presently found to be "non-functioning" assigning the reason that the Government provides tax exemptions and other fiscal incentives to encourage industrial units for their contribution in economic development of the State in general and employment generation in particular and a non-functioning unit neither contributes in economic development nor in employment generation and as such the same is not entitled for grant of eligibility certificate. W.P(C) No. 5143/2018 (Jai Coke Industries) This writ petition has been filed challenging the order dated 05.05.2018 issued by the Commissioner of Industries & Commerce, Udyog Bhawan, Assam holding the industrial unit of the petitioner firm to be ineligible for grant of eligibility certificate under the Industrial Policy of Assam, 2008 as the said industrial unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the application for issuance of Eligibility Certificate W.P(C) No. 5932/2018 (Shiva Coke Industries) This writ petition has been filed challenging the order of assessment dated 31.03.2018 passed by the Assistant Commissioner of Taxes, Guwahati, Zone-B and Notice of Demand issued in pursuance thereof whereby tax has been levied for the year 2013-14 during which the petitioner was entitled to the benefit of exemption from payment of tax by way of remission as per the Industrial Police of Assam, 2008 read with Assam Industries (Tax Remission) Scheme, 2005 and also during the pendency of the application for issuance of Eligibility Certificate. W.P(C) No. 5931/2018 (Jai Coke Industries) This writ petition has been filed challenging the order of assessment dated 29.03.2018 passed by the Assistant Commissioner of Taxes, Guwahati, Zone-B and Notice of Demand dated 31.03.2018 issued in pursuance thereof whereby tax has been levied for the year 2012-13 during which the petitioner was entitled to the benefit of exemption from payment of tax by way of remission as per the Industrial Police of Assam, 2008 read with Assam Industries (Tax Remission) Scheme, 2005 and also during the pendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application for issuance of Eligibility Certificate. W.P(C) No. 2111/2019 (Ganesh Met Coke Industries) This writ petition has been filed challenging the order of assessment dated 22.02.2019 passed by the Superintendent of Taxes, Central VAT Audit Team and the Notice of Demand issued in pursuance thereof whereby tax has been levied for the year 2014-15 during which the petitioner was entitled to the benefit of exemption from payment of tax by way of remission as per the Industrial Police of Assam, 2008 read with Assam Industries (Tax Remission) Scheme, 2005 and also during the pendency of the application for issuance of Eligibility Certificate. W.P(C) No. 2096/2019 (Ganesh Met Coke Industries) This writ petition has been filed challenging the order of assessment dated 29.08.2018 passed by the Assistant Commissioner of Taxes, Guwahati, Zone-B and Notice of Demand issued in pursuance thereof whereby tax has been levied for the year 2013-14 during which the petitioner was entitled to the benefit of exemption from payment of tax by way of remission as per the Industrial Police of Assam, 2008 read with Assam Industries (Tax Remission) Scheme, 2005 and also during the pendency of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for issuance of Eligibility Certificate. W.P(C) No. 5980/2018 (Sheo Shakti Coke Industries) This writ petition has been filed challenging the order of assessment dated 29.06.2018 passed by the Assistant Commissioner of Taxes, Guwahati, Zone-B and Notice of Demand issued in pursuance thereof whereby tax has been levied for the year 2013-14 during which the petitioner was entitled to the benefit of exemption from payment of tax by way of remission as per the Industrial Police of Assam, 2008 read with Assam Industries (Tax Remission) Scheme, 2005 and also during the pendency of the application for issuance of Eligibility Certificate. 6. The Government of Assam, Department of Industries and Commerce by Notification No. CI.310/2001/PT-III/61 dated 26.09.2003 announced the Industrial Policy of Assam, 2003 to achieve various aims and objectives which are enumerated in the policy which are extracted below: "(i) To increase the share of the Industrial Sector to the State Domestic Product (SDP) from the present level of 13.29% a level of atleast 18% at the end of the terminal year of the policy. (ii) To generate more employment opportunities in the State. (iii) To ensure devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) Scheme, 2005, the eligibility criteria for enjoying the benefits by an industrial unit will be available if that industrial unit was considered to be an industrial unit eligible for the benefits available under the Industrial Policy of Assam 2003. Section 3 of the Scheme of 2005 provided for the Tax Exemption/Remission for the eligible unit. Under the said scheme, if an eligible unit registered under the Scheme manufactures any goods in Assam, the said eligible unit shall be entitled to remission of 99% of Tax payable by such unit according to its return in respect of sales of such goods manufactured in such unit and continue to be eligible for such remissions until the amount of such tax payable exceeds the unavailed quantum of monitory ceiling or the extended unexpired period of eligibility whichever is earlier. The benefits of the Industrial Policy of Assam, 2003 was available to new units which were set up on or after 01.01.2003 as well as for existing units undergoing expansion/diversification in the same place in the State of Assam on or after 01.10.2003. 9. The facts being common to all the writ petitioners, the facts in W.P.(C) No. 5917/2018 (Shiva Coke Industries) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clearance from necessary authorities. The petitioner thereafter applied for and was granted provisional consent to establish a Low Ash Metallurgical Coke and Breeze Coke manufacturing unit by the Pollution Control Board, Assam. The Pollution Control Board also gave consent to the petitioner to operate its business of the petitioner industry for the periods 2009-10, 2010-11 and 2011-12. License was also applied for and was granted by the Chief Inspector of Factories under the Factories Act, 1948 for setting up of factory. Upon due verification of the steps undertaken by the petitioner industry and due compliance of the procedure prescribed, the General Manager, District Industries and Commerce Centre issued an acknowledgment dated 27.08.2009 on which date it was mentioned that the activities of the Industrial Unit had commenced from 24.06.2009. In view of the acknowledgement issued, the petitioner started commercial production on 24.06.2009. The Government of Assam thereafter by way of Notification dated 12.05.2009 issued by the Department of Industries announced a new policy namely the Assam Industrial and Investment Policy, 2008 with effect from 01.10.2008. The validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2900/2011 directing the authorities to do so, the Department of Finance and Taxation initiated the assessment proceedings under the Central Sales Tax Act in respect of the writ petitioner for the period 2012-13 under section 36 (1) of the Assam Value Added Tax Act 2003 read with Rule 9(2) of the Central Sales Tax Act. According to the petitioner, since it was eligible for exemption from payment of tax by way of remission and the eligibility certificate in respect thereof was not issued till then by the industries department, the petitioner could not submit its annual and monthly returns online as is required to be submitted by dealers who were granted the benefit of exemption under the Industrial Policy. 12. It is the contention of the petitioner that the online returns could not be submitted in the format prescribed as the returns are required to be accompanied by the eligibility certificate which the petitioner was not provided with by the industries department as its claim was still being examined. Accordingly, the petitioner submitted its return in the offline mode/the manual form by claiming exemption from payment of tax by way of remission. These returns, however, were rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2096/2019; W.P(C) No. 6027/2018; W.P(C) No. 5960/2018; W.P(C) No. 5917/2018; W.P(C) No. 1860/2019; W.P(C) NO. 5980/2018; W.P(C) No. 5932/2018 and W.P(C) No. 5931/2019 have been filed by the petitioners whereby the assessments made by the Department of Finance and Taxation have been assailed as the same were completed during the pendency of the consideration of the claims of the petitioners to be eligible units by the industries department and by ignoring their claims that in the event they are considered to be eligible units, they will be entitled to all the fiscal benefits and the exemptions available under the industrial policies as well as the Assam Remission of Taxes scheme 2005. 17. In so far as the challenge made to the rejection and/or non-consideration of the claims of the respective industrial units to be "eligible units" by the Department of Industries and Commerce, Government of Assam is concerned, the senior counsel appearing for the petitioners submits that the rejection of the claims of the petitioner industrial units for grant of the eligibility certificate on the ground of being "non-functioning units" is opposed to the very object and purpose of the industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the state of Assam by virtue of industrial policy, the petitioner altered its position by making huge investments in purchase of land and setting up of the industrial unit. It is submitted that when the commercial production of the industrial unit started as far back as the dates mentioned in the chart given and continued thereafter, the respondent authorities could not refuse to issue eligibility certificate on the ground that in 2018 the said industrial unit was found to be non-functional. It is submitted that the industrial units which was operation for nearly seven years, therefore the claim of the respondents that as these industrial units did not satisfy or fulfil the required criteria, they were not eligible for is wholly unjustified. It cannot be said that the object and purpose of the industrial policy of economic development and employment generation was not met by the petitioner Industrial units. It is submitted that the respondents were informed by written communication that once the ban on coal by NGT was withdrawn, the petitioner will restart commercial production in its industrial unit. Under such circumstances, refusal to grant eligibility certificate by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is contrary to the facts on the ground. It is submitted that ordinarily an eligibility certificate is issued immediately after commencement of commercial production and once the commercial production commences, the benefits available under the industrial policy of 2008 is required to be conferred on such an industrial unit during the entire period of the industrial policy. It is submitted that there is no provision under the industrial policy of 2008 and/or the Assam Industries Tax (Exemption) Scheme, 2009 that the benefits that if an industrial unit closes down before the expiry of the period of eligibility, the benefits availed will have to be refunded back to the government. It is further submitted that the period of eligibility indicates the maximum period prescribed to which the industrial unit shall be entitled to the benefits as per the industrial policy of Assam 2008. As such, it is submitted that it cannot be interpreted to mean that the industrial unit shall be entitled for incentives only if the industry remains functional for the entire period of the eligibility. 20. Referring to clause 6-B of the exemption scheme of 2009, the learned senior counsel submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the industrial unit merely because the unit was non-functional subsequently. The learned counsel for the petitioners further submits that the fact that the petitioner industrial unit was functional and had commenced commercial production with effect from date of commercial production is evident from the fact that for the relevant period, the Department of Finance and Taxation had completed its assessment by treating the petitioner unit to be a dealer not covered by the exemptions and the benefits. It is submitted that a bare perusal of the assessment order which is impugned by way of a separate proceeding, will reveal that the assessments were completed by due examination of the books of accounts. It is submitted that under such circumstances, the finding of the respondent No. 3 that the unit was non-functional is disputed by the assessments completed by the Department of Finance and Taxation. These assessments were completed under the Central Sales Tax read with the Assam VAT Act and the Rules made thereunder. In terms of the assessment, the petitioner was assessed to tax, penalty and interest for sales. These assessments were in respect of the industrial unit for the period in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der consideration of the State Authorities. However, the respondent Tax department refused to accept the plea of the respective Industrial units that the eligibility certificates were under active consideration by the designated authorities and thereby refused to grant the benefits attributable to the respective industrial units under the Industrial policy of 2008 read with the Assam Industries (Tax Remission) Scheme. It is submitted that because of the lapses on the part of industries department, the returns could not be filed by the online process and for which the petitioner industrial units are not at fault. The delay that had occurred in consideration of the claims for eligibility was not due to any fault of the petitioner industrial units. It is submitted that when the industrial policy of 2008 was initiated by the Government of Assam, it is expected that the various departments and components of the Government of Assam will act in unison to ensure that the benefits conferred under the Industrial policy of 2008 will be made available to all units who satisfy the requirements prescribed. It is submitted that the Department of Industries as well as the Department of Finance and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the industrial unit had completed its sales from the said industrial unit, the impugned orders, whereby the eligibility certificate was rejected needs to be interfered with, set aside and quashed. 26. The learned counsel appearing for the industries department submits that an affidavit has been filed on behalf of the industries department in W.P.(C) No. 1828/2018. He submits that since the facts involved are similar and common for the purposes of all the other cases, he would like to refer to and rely on the said affidavit. 27. The learned counsel for the Industries Department referring to the various provisions of the industrial policy submits that there are various steps which are required to be undertaken in so far as the industries are concerned in order to avail the various incentives and benefits prescribed under the industrial policy. Referring to the facts of the case in WP(C) 1828 of 2019, the learned counsel for the industries department submits that in so far as this petitioner is concerned, their application for eligibility certificate was filed only on 08.02.2016, although they claimed to have commenced their commercial production on the 18.06.2009. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies department as the unit itself was "non-functioning". Under such circumstances, there is no infirmity in the order impugned the present writ petitions rejecting the claims of eligibility by the industries department. He therefore submits that there is no merit in these writ petitions and the same should therefore be dismissed as being devoid of any merit. 28. Mr. B. Chowdhury, learned counsel appearing for the Taxation department submits an affidavit in opposition has been filed in WP(C) No. 5917 of 2018 and he also submits that since the facts are similar for the purposes of the respondent Taxation department, they would like to rely on the affidavit filed in WP(C) No. 5917 of 2018 for all the other writ petitions. The learned counsel appearing for the Finance Department, submits that in so far as the assessments carried on by the Taxation department in respect of the industrial units are concerned, since there was no eligibility certificate enclosed, they were not found to be entitled to the tax exemption and other fiscal incentives offered under these schemes. It is submitted that there is no bar for the State Government to restrict or withdraw any of the incentives prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al", there was no question of any manufacture and consequent sales of its goods, therefore, there ought not to have been any imposition of sales tax by the respondent Finance department. It is submitted that if there is no manufacture, then there is no question of sales leading to imposition of sales tax/VAT. It is submitted that merely because the industrial unit was non-functional for a particular period of time would not disentitle such an industry from the benefits of the industrial policy by treating it to be an eligible industry, if during the currency of the policy, the industrial unit satisfies the prescriptions and the requirements under the said eligibility certificates under the industrial policy. 30. The learned counsel for the parties have been heard. The elaborate pleadings on record as well as the Judgments pressed into service have been carefully perused and noted. 31. As discussed above, there are two batches of writ petitions which are taken up together for hearing and disposal. 32. In W.P(C) No. 5133/2018 (Sheo Shakti Coke Industries); W.P(C) No. 5139/2018 (Shiva Coke Industries); W.P(C) No. 5141/2018 (Raj Coke Industries); W.P(C) No. 5143/2018 (Jai Coke Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner claims to be entitled to under the Industrial Policy as well as the Tax Remission Scheme for no fault of the petitioners but only because the competent authority took time for disposal of the applications for issuance of the respective eligibility certificate. Since this fact was brought to the notice of the Tax authorities, the respective assessments of the petitioners ought not to have been proceed with till effective orders were passed on their claims for entitlements for the exemptions under the relevant Industrial Policy. 34. In order to appreciate the arguments addressed by the counsel, it is necessary to refer to the provisions of the Industrial Policy as well as the Tax Exemption. 35. The Government of Assam, Industries and Commerce Department by a Notification No. CI.310/2001/Pt-III/61 dated 26.09.2003 announced its Industrial Policy of Assam, 2003 to achieve various aims and objectives which are enumerated herein below:- 1. To increase the share of the industrial sector to the State Domestic Product (SDP) from the present level of 13.29% a level of at least 18% at the end of the terminal year of the Policy. 2. To generate more employment opportunitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that initially in view of the change to be brought into effect as regards the tax system, the exemption from sales tax was not mentioned in the Industrial Policy of Assam, 2003 but subsequently the Assam Industries (Tax Remission) Scheme, 2005 was notified in the Assam Gazette Extra-Ordinary No. 165 dated 02.05.2005. It may further be relevant herein to mention that under the Assam Industries (Tax Remission) Scheme, 2005, the eligibility criteria for enjoying the benefits thereon amongst others, was if an industrial unit is eligible under the Industrial Policy of Assam, 2003, the said Industrial Unit shall be treated as an eligible industrial unit. As per the terms of the Industrial Policy read with the terms of the Tax Remission Scheme, 2005, the tax exemption/remission which was allowed for the eligible units was contained in Section 3 of the Scheme of 2005 whereby if an eligible unit registered under the Act manufactures any goods in Assam, the said eligible unit shall be entitled to remission of 99% of the tax payable by such unit according to its return in respect of sales of such goods manufactured in such unit and continue to be eligible for such remission until the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction to the Pollution Control Board to consider the request of issuance of No Objection Certificate to the petitioner without being influenced by the directions contained in the letter dated 16.5.2005. 41. Pursuant to the said Judgment and Order dated 10.08.2007, the Petitioner completed construction of its proposed industrial unit by spending huge amounts of money. At this stage, it may be relevant herein to mention that the Petitioner made the following expenditures towards setting up its industrial unit. The same are stated herein below. Sl.No. Particulars Amount Spent 1 Land and land development Rs. 25,00,000 2 Factory shed and building Rs. 216,00,000 3 Plant and machinery Rs. 104,00,000 4 Generator Set Rs. 5,00,000 Total Rs. 350,00,000 42. Pursuant to the Judgment dated 24.07.2007, 10.8.2007 and various other Orders passed by this Hon'ble Court in relation to the communication dated 16/5/2005 as mentioned above, the Petitioner as well as other Coke Industries submitted applications before the General Manager, District Industries and Commerce Centre for issuance of the EM (Part - II) under the MSMED Act, 2006. Upon such requests being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nication dated 06.05.2009 intimated the General Manager, District Industries and Commerce Centre about the decision of the Government as given in the Communication dated 04.04.2009. Pursuant thereto, the General Manager, District Industries and Commerce Centre on 28.05.2009 by a Communication to the Director of Industries and Commerce with a request to inform as to whether the General Manager, Director of Industries and Commerce should accept the actual/declared date of commercial production of the said unit or as 04.04.2009, the date when the Government of Assam accorded its approval in the acknowledgement under the EM (Pt-II). 48. The Additional Director, Directorate of Industries and Commerce vide a Communication dated 01.06.2009 informed the General Manager, District Industries and Commerce Centre that the EM acknowledgement should be issued on finding of actual field verification and documents submitted with the EM Application in support of different declaration, statements, etc. made in the Application. It was further mentioned that the date of commencement of the commercial production cannot be changed in the acknowledgement EM (Part-II) to be issued provided the same can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy Resolution of 2003 had set up its Industrial Unit by altering its position and thereby it was not permissible for the State in view of the Doctrine of Promissory Estoppel to resile from the said promises by treating the activities of conversion of coal to coke carried out by the industrial unit of the petitioner firm not to be manufacture and thereby denying the benefit of various incentives to the petitioner firm. 53. Those writ petitions came up for hearing before a Division Bench of this Hon'ble Court and vide judgment and order dated 12.05.2015 allowed the writ petition and held Rule 57A (l) of the Assam Value Added Tax (Third Amendment) Rules, 2009 to be ultra vires the provisions of the provisions of the definition of 'manufacture' under the Act of 2003 and beyond the competence of the Rule making powers to alter the definition of 'manufacture' as defined under the Act. During the course of the hearing of those matters a dispute was raised with regard to the date on which the industrial unit was set up and started its commercial production. It was contended by the State that the industrial unit was set up in the year 2005 and commercial production commenced prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Policy of 2008 for encouraging industries to establish the units in the State of Assam by providing incentives in several aspects including taxation. The various features of the industrial policy are extracted below: INDUSTRIAL POLICY - INTRODUCTION 4.1 AIMS AND OBJECTIVES 1) To generate economic development by accelerating the process of industrialization. 2) To generate employment and increase income by encouraging the establishment of micro enterprises. 3) To increase the share of the Industrial sector in the State Domestic Product (SDP). 4) To make Nature - Economics Centric Development. 5) To make Agro and rural area linked industrial investment as focused programme. Besides, the State Government would endeavour to encourage youths of the State, particularly the women entrepreneurs to set up industries, encourage to help increase exports and attract Foreign Direct Investment (FDI) particularly from NRIs. 4.2 STRATEGY The aims & objectives will be endeavoured to be achieved by following suitable and appropriate strategies like: 1) Creation of quality infrastructure 2) Cluster development 3) Encourage investment by fiscal incentives 4) Tax concessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial parlance having a distinct name, character use, but does not include such activity of manufacture as may be prescribed by Finance Department. 6) MICRO/SMALL/MEDIUM ENTERPRISE: As defined in the Micro, Small and Medium Enterprises Development Act, 2006 as amended from time to time. 7) INDUSTRIAL ESTATE/PARK under this policy means an area not less than 500 bighas with infrastructure facilities or built up space with common facilities for the purpose of industrial use commensurate with the master plan of the district or town or city as applicable. Minimum 25% area is to be left for open space and green belt and minimum 10% area for common utility. 4.6 ELIGIBILITY CRITERIA Unless otherwise specified, the eligibility criteria shall be as below: a) A unit that is engaged in the manufacture or production of goods pertaining to any industry specified in the First Schedule to the Industries (Development and Regulation) Act, 1951 is eligible. b) New Units set up on or after 1/10/2008 as well as existing units undergoing substantial expansion at the same place in the State of Assam on or after 01-10-2008 shall be eligible for incentives under 2008 Industrial Policy provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purchased up to 40% of total investment in plant and machinery, can be included as part of fixed capital investment. The Finance Department of Government of Assam shall be the implementing agency for tax incentives. The Finance Department will bring out a separate notification in this regard. 702. EXEMPTION FROM STAMP DUTY AND REGISTRATION FEE To encourage setting up industrial infrastructure in the form of Industrial Park/ Estate through purchase of Private/ Government land, there will be 100% reimbursement of the stamp duty and registration fees against submission of equivalent Bank Guarantee from a nationalized bank that the Industrial Park/ Estate will be set up within a period of 3 years. The said Guarantee will be invoked if the Industrial Estate / Park will not be set up within 3 years or if the land is used for any other purpose. 58. In the above conspectus, this Court is required to decide whether the challenge made in these writ petitions can be sustained. 59. During the course of the hearing, the relevant records etc. were called for. The respondents during the course of the hearing the respondents placed before the Court the "operational guidelines for the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the books of accounts. The assessment of tax was made on the turnover of the unit/industry. Consequently, there appears to be a contrary stand reflected by the two departments of the Government namely, the Industries and the Finance Department. It is trite to mention here that in the State Level Committee constituted to examine and issue eligibility certificates, representatives of both the industries as well as the Finance and Taxation Department are members and which fact is not disputed by the respondents. Under such circumstances, it cannot be understood as to how a unit which was found to be non-functioning by the industries department could have reflected the turnover of goods manufacture and on the basis of which the assessments were carried out and demands were raised by the Finance and Taxation Department. If the unit was indeed 'non-functioning' then there could not have been any turnover leading to an assessment and consequential demand. If indeed the assessments were made by the Finance and Taxation department after proper examination of books and accounts it reveals that the units was functioning and could therefore carry on its manufacturing activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to be closed down subsequently due to the financial crisis and shortage of raw material and thereby the State Level Committee ought not to have rejected the claims of the Petitioner on the ground that with effect from January, 2018 the Petitioner unit was not functioning. Paragraph 8 and 9 of the said Judgment and Order are relevant and the same are reproduced herein below: "8. The affidavit-in-opposition filed by the respondent Nos. 3, 4, 5 and 6 in both the writ petitions clearly shows that the claims of the petitioner were duly verified and due recommendations were made for payment of the amount of transport subsidy in favour of the petitioner. This Court has also raised a specific query upon the learned counsel appearing on behalf of the Industries Department as to whether it is the necessity of the Transport Subsidy Scheme that the industrial unit concerned has to be functioning as on the date on which the amount is to be released, or is it necessary to make verification as to whether such raw materials or finished goods were actually transported or not. Learned counsel appearing on behalf of the Industries Department with all fairness submitted that though it is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... squarely applicable in the present case. 65. It is further seen from the pleadings that there is no dispute prior to closing down of the industrial unit of the Petitioner, the Petitioner's industrial Unit was producing the goods and was making sales of the same and the same will be evident from the orders of assessment passed by the Assessing Authority which are subject-matter of challenge in the other Writ Petitions: 66 In the orders of assessments, the Assessing Authority levied taxes on the sales made by the Petitioner's industrial unit on the ground that the Petitioner's industrial unit failed to produce the eligibility certificate for claiming the remission of the tax as per the Scheme of 2009. The said orders of assessments clearly reflects that the industrial unit of the Petitioner was in operation prior to closing down of the same which was due to non-availability of coal due to ban by the National Green Tribunal and the said fact was duly intimated to the Respondent Authorities. If the industrial unit of the Petitioner was not a operation before closing down, the question of making sale of the goods by the said industrial unit prior to its closure does not arise and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the same cannot be considered while examining the validity of the impugned order. It is a settled law that the validity of an order has to be examined on the basis of the contents of the said order and the validity of the same cannot be supported by subsequent affidavits and submissions. 69. In the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16, the Apex Court in paragraph 9, held as under: "9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of the Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting's and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. The aforesaid judgment of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the industrial unit of the petitioner firm on untenable grounds. Under the doctrine of promissory estoppels where the Government has made a promise and the prose relying on the promise has altered it's position to its detriment the Government is not exempt from it's liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex-parte appraisement of the circumstances in which the obligation has arisen. The superstructure of the doctrine with its preconditions, strengths and limitations has been outlined by the Apex Court in its landmark judgment of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409. The Apex Court reiterated the well known pre conditions for the operation of the Doctrine of Promissory estoppel as under: (1) a clear and unequivocal promise knowing and intending that it would be acted upon by the promisee; (2) such acting upon the promise by the promisee so that it would be inequitable to allow the promisor to go back o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced which is prohibited by law in the sense that the person or authority making the representation or promise must have the power to carry out the promise. If the power is there, then subject to the preconditions and limitations noted earlier, it must be exercised. Thus, if the statute does not contain a provision enabling the Government to grant exemption, it would not be possible to enforce the representation against the Government, because the Government cannot be compelled to act contrary to the statute. But if the statute confers power on the Government to grant the exemption, the Government can legitimately be held bound by its promise to exempt the promisee from payment of sales tax." 72. The Apex Court again the case of Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582 : (1970) 3 SCR 854] emphasized the strengths as defined earlier by holding as under: "If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, result in an agreement enforceable at law, if the statute requires that the agreement shall be in a certain form, no contract may result from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting exemption retrospectively was not in accordance with Section 10 of the State Sales Tax Act as it then stood, as there was no power to grant exemption retrospectively. By an amendment that power has been subsequently conferred. In these appeals there is no question of retrospective exemption. We also find that no reference was made by the High Court to the decision in M.P. Sugar Mills case [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144]. In our view, to the facts of the present case, the ratio of M.P. Sugar Mills case [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] directly applies and the plea of estoppel is unanswerable. ... Such exemption would continue for the full period of five years from the date they started production. New industries set up after 21-10-1980 obviously would not be entitled to that benefit as they had notice of the curtailment in the exemption before they came to set up their industries." 74. The aforesaid decision was followed by a three-Judge Bench in State of Bihar v. Usha Martin Industries Ltd. [1987 Supp SCC 710 : 1988 SCC (Tax) 116] where it was state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itling the latter to legally get out of the promise. *** 24. ... We, therefore, agree with the finding of the High Court on Issue 1 that by these notifications the Board had clearly held out a promise to these new industries and as these new industries had admittedly got established in the region where the Board was operating, acting on such promise, the same in equity would bind the Board. Such a promise was not contrary to any statutory provision but on the contrary was in compliance with the directions issued under Section 78-A of the Act. These new industries which got attracted to this region relying upon the promise had altered their position irretrievably. They had spent large amounts of money for establishing the infrastructure, had entered into agreements with the Board for supply of electricity and, therefore, had necessarily altered their position relying on these representations thinking that they would be assured of at least three years' period guaranteeing rebate of 10% on the total bill of electricity to be consumed by them as infancy benefit so that they could effectively compete with the old industries operating in the field and their products could effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on strict legal rights, even where they arise, not under any contract, but on his own title deeds or under statute. *** Whatever be the nature of the function which the Government is discharging, the Government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied, the Government can be compelled to carry out the promise made by it." 79. The Apex Court distinguished its earlier decision in Kasinka Trading v. Union of India, (1995) 1 SCC 274, by holding as under: "40. The case of Kasinka Trading v. Union of India [(1995) 1 SCC 274] cited by the appellant is an authority for the proposition that the mere issuance of an exemption notification under a provision in a fiscal statute such as Section 25 of the Customs Act, 1962, could not create any promissory estoppel because such an exemption by its very nature is susceptible to being revoked or modified or subjected to other conditions. In other words, there is no unequivocal representation. The seeds of equivocation are inherent in the power to grant exemption. Therefore, an exemption notification can be revoked without falling foul of the principle of promissory estoppel. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed under the Assam Value Added Tax Act, 2003, applications as necessary were duly made for grant of eligibility certificate. There being no material placed before the Court by the respondents to the effect that the units of the Industries concerned never commenced commercial production or were never established in terms of the provisions of the Industrial Policy, in the face of the assessments conducted by the Finance Department and levy of demand of sales tax on the sales made by these units/industries and these assessments having been made on the basis of due examination of the books of accounts of the said industries, it has to be held that these industries did establish their units in terms of the Industrial Policy and had commenced its productions. But for the insertion of Rule 57A in the Assam Value Added Tax (Third Amendment) Rules which did not consider conversion of Coal to Coke carried out by these units, the eligibility certificate could not be applied for as the production carried on by the unit/industry was excluded from the definition of 'manufacture'. However, pursuant to the said Rule 57 being set aside, the steps were taken by the petitioner industries to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent have held that the industry was non-functioning and therefore could not have generated any production and consequent sales. However, a perusal of the assessment order by the Finance and Taxation Department reveals that the said order was passed upon due verification of books of accounts and other relevant documents. The assessments were made treating the petitioners to be regular registered dealer in the absence of the eligibility certificate produced by the petitioners. The benefit of exemption was not granted as the eligibility certificate was not produced. Since the orders of assessment and the subsequent demands were stated to be passed by the Finance Department after due examination of the books of accounts and other relevant documents, such findings by a quasi-judicial authority strongly suggests that the industry was in existence at the time when the assessments were completed for the relevant years. In the face of such conclusion by the quasi-judicial authority, the certificate of the General Manager that the industry was non-functional cannot be accepted. 85. This certificate of the General Manager cannot be accepted on another ground also. The eligibility certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shown to be contemplated. Under such circumstances the state cannot be permitted to resile from its promise made without any justified reasons. Any such denial of the benefits under the Industrial Policy, if permitted, will be in total violation of the Doctrine of promissory Estoppel. 87. As have been discussed above, the State Level Committee comprises of representatives of various Government Departments including the Industries and Taxation. If the State Level Committee had indeed examined the claims of the petitioner for grant of eligibility certificates on relevant documents and materials, it would have been known to the State Level Committee that the Finance and Taxation Department have proceeded to make assessments on the concerned unit or industry for the relevant assessment years and therefore, the report of the General Manager, Industries on the other hand that the unit or the industries were non-functioning ought to have called for a detailed examination requiring re-verification of the contrary views of both the departments. It is necessary to hold here that the State Government although comprises of several departments, that the voice of the Government must be One. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the returns by the said units or industries. 90. As have been discussed, the assessment orders itself reflects that the books of accounts etc were examined and pursuant to which the assessment orders and the consequential demands were raised. Therefore, in the facts of the present case, besides the other departments which had the occasion to examine the papers submitted for establishment of the industry as well as assessment order and the consequential demands raised by the Finance Department, the fact remains that there is no mala fide alleged against the industry or unit by the respondent authorities. There is also no allegation that undue advantage has been sought to be taken by the industries in respect of Industrial Policy concerned. Under such circumstances, the department of Finance as well as the Industries Department, being representatives of different department but a part of the same Government and a constituent members of the State Level Committee,- the State Level Committee being the mouth piece of the Government in so far as the Industrial Policy is concerned they must speak in one voice by taking into various views and evaluations undertaken by each of the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners could not be availed off as the returns could not be filed on the online mode supported by the eligibility certificate as is required under the procedure. These returns were filed in the physical mode with due representations that the claims for eligibility are under consideration and the department is required to await the grant of eligibility certificate by the Industries Department. No other ground is urged in these writ petitions. The industrial policy having been carefully examined does not provide for any exemptions for the period during which the eligibility certificate is under consideration. Even under the Assam Industries (Tax) Remission Scheme, 2005 which was announced to grant exemption from taxation under the Industrial Policy, there was no provision for grant of any benefits unless the eligibility certificate is granted to the unit concerned. No benefit is contemplated during the period under which the application for grant of eligibility certificate is under consideration. Since the only ground urged for assailing the assessments and the consequential demands raised is the refusal of the Finance and Taxation Department to await for the grant of eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X
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