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2018 (8) TMI 941 - BOMBAY HIGH COURTSales Tax incentive scheme - Package Scheme of Incentive - Eligibility Certificate - benefits sanctioned by the Government of Maharashtra under the 1993 scheme - reopening of assessment on account of change in opinion - Held that:- The petitioner was entitled to utilize the benefits available under the 1993 Package Scheme between 1.09.1999 to 31.08.2013 or on the exhausting the monetary ceiling, whichever occurred earlier. According to the petitioner the Nashik plant availed the incentive's in the ratio/proposal prescribed in the entitlement certificate as also the circular and exhausted the monetary ceiling in the year 2008. As per the case of the petitioner it was assessed by the Assistant Commissioner of the Sales Tax for the Financial year 20062007 by order dated 29.03.2011 and the assessment order confirmed the deferment amount claimed by the petitioner. These orders passed by the Assistant Commissioner came to be rectified on 27.02.2012 and the petitioner preferred an appeal to the Deputy Commissioner of Sales Tax, Nashik Division. Section 41BB of the Bombay Sales Tax Act came to be inserted on 27.03.2001, introducing a provision of proportionate incentives to an eligible unit in certain contingencies which included a provision of making the incentives dependent on the turn over of sales and purchases to be arrived at by applying a ratio prescribed by the State Government to the total turnover of sales and purchases of the said unit in that year. By introduction of the said provision the benefits availed of by an eligible unit in contravention of subsection (1) was deemed to be withdrawn and such unit was liable for payment of tax in respect of turnover of sales and purchases in respect of the turnover and the benefit which was withdrawn was directed to be recovered as a tax. The said provision was introduced with a nonobstante clause, giving effect to it inspite of existence of any provision contained in package Scheme of Incentives. By the Package Scheme of Incentives the State Government has granted a tax concession but there is no embargo to withdraw the said concession under the Package Scheme of Incentives of 1988 and 1993 which were formulated under the provisions of the Bombay Sales Tax Act - Once the validity of Section 93 has been upheld, the Petitioner cannot be permitted to argue that he was entitled to enjoy the benefits in terms of its eligibility and entitlement certificate. It was found by the Reviewing Authority that the Assessing officer had committed an error and since the provision of law which has been brought by amendment Act 2009 is to be implemented with retrospective effect, the Deputy Commissioner of Sales Tax has exercised the power of review and passed the impugned order. The exercise of the said power is in the larger interest of the revenue and hence cannot be said to be without jurisdiction or malafide. This is not only a case of reopening of the assessment on account of change of opinion. Petition dismissed.
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