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2019 (4) TMI 1139 - RAJASTHAN HIGH COURTValidity of Revised entitlement certificate dated 02.04.2018 - constitutional validity of Clause 13 of the Rajasthan Invest Promotion Scheme-2013 - Time limitation for rectification of Mistake - HELD THAT:- Clause 9(B)(viii) of the RIPS-2003 inter alia provides that with a view to rectify mistake apparent on the record, subsidy sanctioned by the assessing authority of the Commercial Taxes Department, under this scheme may be rectified suo motu or otherwise any order passed by the assessing officer as per the provision of Section 33 of the Rajasthan Value Added Tax Act-2003. This is thus clear that this provision has been intended to be applied by the assessing officer of the Commercial Taxes Department. Meaning thereby, had the assessing officer initiated the action to rectify the mistake, he could do so only within a period of limitation of four years prescribed under Section 33 of the Rajasthan Value Added Tax Act, 2003. This provision cannot therefore create any impediment for the State to invoke Clause 13 of the RIPS-2003. Clause 7 of the RIPS-2003 is the relevant provision relating to Capital Investment Subsidy with which we are concerned in the present matter. Clause 7(i)(a) of the RIPS-2003 provides that in case of new investments made, the sum total of Capital Investment Subsidy (Interest component) and Capital Investment Subsidy (wage component) would be subject to a maximum limit of fifty percent of the tax payable and deposited under the Rajasthan Sales Tax Act, 1994, the Central Sales Tax Act, 1956 and Rajasthan Value Added Tax Act, 2003. Clause 7(i) (b) of the RIPS-2003 inter alia provides that in case of investment made in the Modernization/Expansion, the amount of Capital Investment Subsidy shall be subject to a maximum of fifty percent of the amount of the Central Sales Tax and VAT payable or deposited by the unit on its additional capacity, so created over and above the installed capacity before Expansion/Modernization. Undeniably, the cement package was inserted into the RIPS-2003 as sub-clauses (vi) and (vii) vide notification dated 05.12.2005 which empowered the SLSC to grant tax incentive upto 75% to the entrepreneurs on fulfillment of the conditions contained therein, but these two sub-clauses were soon thereafter deleted on 28.04.2006. The SLSC was therefore left with no authority whatsoever to decide in its meeting dated 17.03.2011 to grant 75% tax subsidy to the petitioner-company. Thus clearly, it is basically decision of the SLSC which has been revised by the Principal Secretary, Finance Department on behalf of the State Government and not the decision of the BIDI. In case of ambiguity in charging provisions, the benefit must necessarily go in favour of assessee, but the same is not true for an exemption notification or exemption clause wherein the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. Furthermore, the burden of proving applicability of exemption would be on the assessee to show that his case comes squarely within the parameters of the exemption notification or exemption clause - In the present matter, case of the petitioners has not even been considered by the BIDI which merely relegated it to SLSC, as such the provisions of the RIPS-2003 are to be strictly adhered to. Unlike the exemption schemes where the assessee is not collecting the taxes from the customer/purchaser, here in the present case of subsidy, the tax is collected from the customers/purchasers and after depositing the same with the department, the amount to the extent of 50% or 75%, as per the entitlement certificate, is refunded to the assessee. The petitioner-company was very much aware about Clause 13 of the RIPS-2003 while submitting the application and availing the benefits. Therefore, the petitioner-company will be deemed to have waived all objections with regard to any clauses of the RIPS-2003. The RIPS-2003 is a composite scheme whereunder the benefits are conferred conditionally and therefore the argument of unreasonableness and arbitrariness is wholly misconceived. The argument that exercise of power of revision within five years after the expiry of seven years during which benefit was availed by the petitioner-company, makes the said provision as unreasonable, arbitrary, oppressive and violative of fundamental rights of the petitioners, has no merit. Petition dismissed.
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