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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 65 Records
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2021 (2) TMI 1339
Demand of differential tax on the goods sold in terms of Section 3(4)(b) of the Tamil Nadu Value Added Tax - payment of concessional rate of tax by availing the benefit of Section 3(4)(a) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The court there held that it is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended - It observed that provision for surcharge under the Finance Act, 2002 was in existence since 1995, insofar as levy of surcharge for block assessment was concerned. However, it was introduced by insertion of aforesaid proviso to Section 113 therefore a question arose as to whether this surcharge on block assessment has been levied for the first time by the aforesaid proviso coming into effect from 1-6-2002 or it is only clarificatory in nature because of the reason that the provision for surcharge was made in the Finance Act in the year 1995 and that covered surcharge on block assessment as well.
In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.
The amendment to Section 3(4)(b) of the Tamil Nadu Value Added Tax Act, 2006 received the assent of the Governor on 26.09.2011. It was notified vide G.O.Ms.No.135, Commercial Taxes and Registration (B1), dated 31.10.2011 for the purpose of Section 1(2) of Act No.27 of 2011 - Though the said amendment was notified vide G.O.Ms.135, Commercial Taxes and Registration (B1), dated 31.10.2011, the Government appointed the 1st day of April 2012 as the date from which the said amendment was to come into force. It has not declared that the amendment will come into force from an anterior date.
Since the Government has not given the amendment effect from an earlier date during the Assessment Years 2010-2011 & 20112012, it cannot be given effect with retrospective date on an earlier date. This aspect was not brought to the attention of the Court in the two decisions which were cited.
Cases remitted back to the respondents for a limited purpose for passing fresh Revised Assessment Orders by allowing the petitioner to adjust the Input Tax Credit in terms of Section 3(4)(b) of the Tamil Nadu Value Added Tax Act, 2006 which benefit has not been given to the petitioner - petition disposed off.
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2021 (2) TMI 1336
Maintainability of petition - availability of alternate remedy of appeal - club and association services - applicability of doctrine of mutuality - HELD THAT:- The impugned order is erroneous and that can be set right in a statutory appeal. The petitioner has alternate and most efficacious remedy of appeal in the matter.
The writ petition is disposed off.
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2021 (2) TMI 1307
Reimbursement of differential tax amount arising out of change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) with effect from 01.07.2017 - grievance of the Petitioner is that in view of the introduction of the GST, Petitioner is required to pay tax which was not envisaged while entering into the agreement - HELD THAT:- The Petitioner shall make a comprehensive representation before the appropriate authority within two weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 15.03.2021.
The writ petition is disposed off.
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2021 (2) TMI 1289
Review Jurisdiction - error apparent on the face of the order or not - HELD THAT:- While holding that no grounds are made out for reviewing the impugned order, this Court directs the petitioners to take earnest steps to resolve the mismatch issue and as far as possible, avoid the dealers being called upon to produce documents by verifying details available in the departmental website and only when it is not possible for the Department to reconcile, then the dealers may be put on notice and in such circumstances, a more conciliatory approach shall be taken if the dealers are called upon to appear.
The review application is dismissed.
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2021 (2) TMI 1287
Rejection of rectification of error apparent on the face of record - non-hearing of the case - no opportunity of hearing was granted to the petitioner - Section 66 of KVAT Act - violation of principles of natural justice - HELD THAT:- Provision of Section 66 deals with power of the authority to rectify any error apparent of the face of record. However, any provision in the said Section is not found, which declaring that no opportunity of hearing can be granted to the assessee filing an application for rectification.
In the case in hand, the application for rectification under section 66 of the KVAT Act (Ex.P9) contains a specific prayer made by the petitioner that his application for rectification should be decided after granting an opportunity of personal hearing to him. It is evident from the order at Ext.P10 that no opportunity of hearing was granted to the petitioner while passing the order rejecting the application for rectification. Moreover, the order at Ext.P10 cannot be said to be a reasoned order, rejecting the application for rectification which has raised several grounds.
Writ petition disposed off.
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2021 (2) TMI 1275
Demand of interest under 24(3) of Tamil Nadu General Sales Tax Act - payment of additional sales tax and surcharge on reopening of assessment - HELD THAT:- It is not as if the petitioner tried to evade payment of tax. He paid tax in terms of the self assessment made by him. When it was reopened and demand was made for payment of additional sales tax and surcharge, the petitioner complied with the said demand. Only if the petitioner had not complied with the demand set out in the assessment order passed by the respondent, the question of levy of interest will arise. In view of the prompt compliance by the petitioner, there is no justification in making demand for payment of interest.
More than anything else, identically placed persons were given the benefit of waiver. On a person, who has paid the statutory levies, fastening liability to pay interest appears to be highly inequitable. The demand for payment of interest is not sustainable.
The impugned demand order is quashed and the writ petition is allowed.
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2021 (2) TMI 1236
Maintainability of application - HELD THAT:- Let Notice be issued to the respondents, returnable on 26th February 2021. The respondents shall be served directly through Email. The regular Direct Service is also permitted.
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2021 (2) TMI 1228
Denial of C-Form - inter-State sale as a result of which a higher rate of tax was charged - HELD THAT:- The High Court in J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT] has held that the dealer has passed on the burden to the respondent and hence, to deny the claim of refund to the respondent despite the State not contesting in principle the liability to refund would be “hyper-technical”.
SLP dismissed.
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2021 (2) TMI 1210
Principles of natural justice - Validity of assessment order - assessments have been finalized without affording an opportunity to the petitioner - HELD THAT:- In this matter, a request had been made for D7 records as early as in 2007 and the records were, admittedly, photo copied and handed over to the petitioner. Vide letter dated 30.10.2019, the petitioner sought another copy of the records on the ground that the earlier copies had been given to its advocate, who had misplaced the same - the authorities have permitted the petitioner to inspect and verify the records in their premises, rejecting the request for furnishing copies yet again.
The assessment is set aside solely in the interests of substantial justice, and to afford full compliance with the provision of natural justice, and direct that a copy of the D7 records be furnished to the petitioner upon its remitting appropriate costs, within a period of two weeks from today - petition allowed by way of remand.
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2021 (2) TMI 1155
Passing of assessment orders - case of petitioner is that It was thus incumbent upon the Officer to have passed orders of assessment on or before 23.8.2019, instead of which he issues a notice on 28.08.2019 granting one more opportunity of personal hearing - HELD THAT:- In the affidavit filed in support of this writ petition, the only ground raised is that the timelines fixed by this Court on 20.06.2019 have not been adhered to. This ground fails in light of the reply of the petitioners dated 12.07.2019 requesting the officer to keep the matters in abeyance till such time the batch is decided by the Bench.
There are no merit in these writ petitions - Let notice be issued afresh and proceedings concluded after hearing the petitioners in accordance with law.
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2021 (2) TMI 1154
Levy of Entry Tax - Section 4 of the Entry Tax Act - no opportunity of personal hearing granted - HELD THAT:- Pursuant to the order of remand, the petitioner appeared before second respondent and submitted their objection. The same is also enclosed at Page No.12 of the typed set of papers. Even though, this Court had specifically stated that the point of set off should also be dealt with, in the impugned order, dated 31.08.2020, I find that the set off point has not at all been dealt with. There is considerable force in the contention of the learned Counsel for the petitioner that the direction given by this Court has not been complied with by the second respondent.
The second respondent need not issue any more hearing notice to the Writ Petitioner. All the materials are very much on record. The second respondent will consider the same and pass fresh orders in accordance with law - Petition allowed.
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2021 (2) TMI 1115
Recovery of Tax - Attachment and auction of property - Right of buyer of property in Auction - Validity of action on the part of respondent no.1/ District Industries Centre in refusing to transfer the property - priority of dues - mortgage of property - HELD THAT:- The issue about priority of dues, inter se between the respondent nos.2 and 3, is no longer res integra but is covered by the judgment of the Full bench of the Madras High Court in THE ASSISTANT COMMISSIONER (CT) , ANNA SALAI-III ASSESSMENT CIRCLE VERSUS THE INDIAN OVERSEAS BANK, M/S. SUPER RECORDING CO. LTD. [2016 (12) TMI 373 - MADRAS HIGH COURT] where it was held that the rights of a Secured Creditor to realise secured debts due and payable by sale of assets over which Security Interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority. This Section introduced in the Central Act is with ''notwithstanding'' clause and has come into force from 01.09.2016.
The SARFAESI Act, is obviously a Central Statute, and therefore any priority of claim for debts due to a secured creditor, which is created by any provision, as contained therein (Section 26-E in this case), will prevail over any First Charge, which may have been created by Section 37 (1) of the MVAT Act, 2002, in view of the language used in Section 26-E of the SARFAESI Act which states that such a claim by a secured creditor “shall be paid in priority over all other debts and all revenues, taxes, cesses, and other rates payable to the Central Government or State Government or local authority”. The priority created by virtue of Section 26-E of the SARFAESI Act, also takes precedence over any crown debt, which is due or payable to the Central Government, State Government or local authority. Thus, creation of any priority for any debts due, to the secured creditor, under Section 26-E of SARFAESI Act would prevail over any charge created for payment of a liability, on account of tax etc., which is due or payable to the State Government under the provisions of the MVAT Act, 2002.
As Section 37(1) of the MVAT Act, 2002, creates a charge on the property, a successful auction purchaser, thus would hold the property, upon which a statutory charge has been created, subject to such charge and the property would thus continue to be liable for any statutory charges created upon it, even in the hands of such auction purchaser, though for non disclosure of such charge by the secured creditor, the auction purchaser may sue the secured creditor and have such redress, as may be permissible in law. This is moreso for the reason that the priority given in Section 26-E of the SARFAESI Act, to the Banks, which is a secured creditor, would only mean that it is first in que for recovery of its debts by sale of the property, which is a security interest, the other creditors being relegated to second place and so on, in the order of their preference as per law and contract, if any, as the case may be. Thus the dues under Section 37(1) of the MVAT Act, 2002, being a statutory charge on the property, would also be recoverable by sale of the property, and that puts a liability upon the auction purchaser, who, in case he wants an encumbrance free title, will have to clear such dues - The provisions of Section 13(7) of the SARFAESI Act, thus also provide for the manner in which the money received by the secured creditor, by sale of the security interest, is to be applied, the residue after discharge of the debts of the secured creditor, has to be held in trust and paid to the person entitled thereto in accordance with his rights and interests, which in this case, would be the dues under the MVAT Act, 2002. It would thus be proper for the secured creditor, to ensure that all encumbrances, be known before hand; the amount to be received by auction of the property, should be sufficient to cover the costs, charges and expenses and discharge of the dues of the secured creditor and also discharge of the encumbrances upon the property.
Thus, the dues as claimed by the respondent no.2, being a charge on the property, under Section 37(1) of MVAT Act, 2002, and the property having stood attached by the respondent no.2, before the auction, the petitioner, would be liable to pay the same to the respondent no.2, in order to obtain a clear and marketable title to the property, having purchased the same on 'As is where is and whatever there is basis'. In case the petitioner discharges the aforesaid dues of the respondent no.2, it would then be entitled to a no dues certificate from the respondent no.2 - the petitioner is not entitled to the reliefs as claimed in the petition.
Petition dismissed.
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2021 (2) TMI 1105
Attachment of immovable property - It is the case of the Department that it proceeded to attach the immovable property in question as it is the estate of the deceased (original assessee). On the other hand, the case of the writ applicant is that, it is not the estate of his deceased father, but it is his self acquired property - HELD THAT:- Let Notice be issued to the respondents, returnable on 09.03.2021.
Mr. Kathiriya, the learned AGP waives service of Notice for the State Respondents. Mr. Kathiriya shall file reply prima facie pointing out that the materials on record indicate that the immovable property in question is the estate of the deceased.
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2021 (2) TMI 1098
Validity of attachment order passed before the expiry of period of filing of an appeal - service of notice - HELD THAT:- submission of the revenue to the effect that the entire tax becomes payable immediately upon dismissed of an appeal by the first appellate authority thus, appears to be misconceived - An assessee aggrieved by an appellate order should have the full benefit of the period granted for filing of appeal and it is only thereafter that proceedings may be initiated recovery of the disputed demand.
There is support in this regard from a decision of a learned Single Judge of this Court in COIMBATORE PIONEER MILLS LIMITED VERSUS COMMERCIAL TAX OFFICER, PEELAMEDU NORTH ASSESSMENT CIRCLE, COIMBATORE AND ANOTHER [2007 (3) TMI 696 - MADRAS HIGH COURT] wherein a direction has been issued to the Department not to initiate steps for recovery till such time the time for filing of second appeal has expired.
A direction is issued to the 2nd respondent to lift the impugned attachment forthwith - Petition allowed - decided in favor of petitioner.
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2021 (2) TMI 1046
Scope of SCN - Cancellation of assessee's registration on grounds different from those disclosed in the show cause notice - cancellation of registration of the assessee with retrospective effect - U.P. Value Added Tax Act, 2008 - HELD THAT:- There can be no dispute that before cancellation of registration, a reasonable opportunity of hearing has to be afforded to the affected dealer. In the present case, the notice does not disclose the exact nature of the charge leveled against the assessee inasmuch as it does not disclose the names of the other dealers with whom the assessee is alleged to have entered into fake and bogus transitions. Neither the show cause notice disclosed the exact nature of such transactions, nor the volume of such transactions nor the name of the dealer with whom asseessee is alleged to have traded in goods after cancellation of the registration of the other dealers or after closure of business by the other dealer.
In absence of such disclosure contained in the show cause notice dated 24.10.2016, it is difficult to contemplate how a person in the shoes of present assessee could have responded to the show cause notice and defended the proceedings for cancellation of his registration. Unless the assessee had been confronted with the names of the dealers with whom it was alleged to have entered into bogus transactions and unless the details of such transactions had been disclosed in the notice itself and unless similar details of other dealers, who are alleged to have closed their business been disclosed the assessee could never have effectively responded to the charge/s leveled against him of having engaged in bogus transactions only for the purpose of availing I.T.C. Cancellation of registration is a very serious proceeding. It takes away the right of an assessee to do business. Therefore such a proceeding should be approached with that much more seriousness and case by the assessing authority.
At present the assessing authority appears to have passed a wholly ex parte order inasmuch as in first place it had not disclosed to the assessee the exact nature of the charge leveled against him or the facts and circumstances in which his registration was being cancelled and in any case material that formed the basis of the charge was completely concealed from the assessee - appellate authority and the Tribunal have erred in not correcting the mistake thus committed by the assessing authority - answered in the negative i.e. in favour of the asseessee and against the revenue.
The question relating to retrospective cancellation of registration, need not be answered - At the same time, keeping in mind the nature of allegation leveled against the assessee, the proceeding cannot be allowed rest here. It is then provided that the assessing authority shall issue a fresh notice in terms of the order dated 18.11.2016 and proceed in accordance with law.
Revision allowed in part.
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2021 (2) TMI 1037
Input Tax Credit - denial of ITC in the hands of purchasing dealer or recovery from the seller for failure to deposit the tax - Section 19(1) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The State had preferred an appeal in THE ASSISTANT COMMISSIONER (CT) CHENNAI VERSUS SRI. VINAYAGA AGENCIES [2020 (4) TMI 141 - MADRAS HIGH COURT] has dismissed the writ appeal, holding that respondent are directed to allow the ITC in the hands of purchasing dealer under Section 19(1) of the Act.
Appeal dismissed - decided against appellant.
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2021 (2) TMI 1035
Levy of Tax - transfer of right to use of goods or not - supply of cranes under the agreement to the Bharath Heavy Electricals Limited - Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - tax levied on the ground that the petitioner has effected sale within the meaning of extended definition of sale under Section 2(33) of the Tamil Nadu Value Added Tax Act, 2006 of transfer of right to use of goods - HELD THAT:- Though it is the contention of the learned counsel for the petitioner that they have paid the service tax and have registered with the Service Tax Authority, there are no records to substantiate the same before the this Court.
The Hon'ble Supreme Court in Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others, [2006 (3) TMI 1 - SUPREME COURT], has enumerated the situation, under which, there would be transfer of right to use where it was held that the lifts were in possession of the petitioner. Thus, there is no transfer of right to use.
In the facts of the case, there is no transfer of right to use and no case was made out for recovery of tax amount from the petitioner under Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - the impugned orders are liable to be quashed and are accordingly quashed - petition allowed - decided in favor of petitioner.
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2021 (2) TMI 983
Classification of goods - Bicycle Chain Cover, Bell, Cycle Stand, Handle Grip Cover and Cycle Seat Cover, accessories - whether taxable as unclassified items, at the rate of 13.5% under Schedule-V of the Act or the bicycle parts to be notified under entry at item no. 19 of Schedule II Part-A of the Act taxable at the rate of 5%? - Section 59 of The U.P. Value Added Tax Act, 2008 - HELD THAT:- Tribunal has taken note of the material and evidence relied upon by the assessee. Yet, it misdirected itself in approach in as much as without first deciding whether the commodities in question were parts of bicycles it considered the question whether they were 'accessories of bicycles'. Undisputedly, there is no schedule entry of 'accessories of bicycles' or of 'accessories', under the Act. It was also not the argument of the assessee that the parts dealt with by it were 'accessories' and therefore liable to tax as bicycle parts. In absence of such taxing entry and considering the case set up by the assessee, the issue to be decided by the Tribunal was whether the commodities were cycle parts - If not, only then an issue would arise if the commodity was taxable as 'accessories' or as any other scheduled commodity or as an unscheduled commodity. To that extent the Tribunal has erred in reasoning that the commodity is accessory and therefore not parts of bicycle.
Since the Tribunal has yet not expressed its opinion on the common parlance test invoked by the assessee and since that finding does involve appreciation of facts, it is desirable that the present matter be re-considered by the Tribunal considering the observations made above, before this Court may examine the issue itself.
The matter remitted to the Tribunal to pass fresh order on the strength of the evidence and material available on record, as expeditiously as possible preferably within a period of three months from the date of production of a copy of this order before him - Petition allowed by way of remand.
As regards the question, Whether the Tribunal was legally correct in holding that as per common parlance and commercial parlance, chain cover, carrier, seat cover, bell and handle grip cover are accessories to a bicycle and not its parts, and as such, these items were taxable as unclassified items under the U.P. VAT Act?, the same is left unanswered.
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2021 (2) TMI 976
Levy of tax - Inter-state sale - applicability of benefit of section 6(2)(b) of the Central Sales Tax Act - Section 3(a) of CST Act - HELD THAT:- In the assessee's own case, an identical issue was considered by the Hon'ble Division Bench of this Court in the decision reported in TRACTORS & FARM EQUIPMENTS LTD. VERSUS STATE OF TAMIL NADU AND ANOTHER [1998 (6) TMI 559 - MADRAS HIGH COURT] which went in favour of the petitioner - assessee holding that the sale was an inter-state sale under Section 3(a) of the Act.
Following the said decision, the show cause notices issued to the assessee in respect of other years were also set aside. When the said judgment was placed before the Tribunal, the Tribunal, in paragraph 18 of the impugned order, noted the decision and held that the said decision would squarely applicable to the assessee's case for the assessment year under consideration also. However, the Tribunal committed an error in not correctly noting the ultimate relief for the assessment year 1980-81. In fact, in the last sentence of the said judgment, it was held that the order of the Tribunal levying tax on second inter-state sale effected by the assessee could not be sustained and was therefore set aside. Had the Tribunal noted this last sentence, the relief that should have been granted to the assessee was to allow the appeal and not to dismiss the same. This would be sufficient to interfere with the impugned order.
The Department was bound by the decision of the Hon'ble Division Bench of this Court in the assessee's own case namely TRACTORS & FARM EQUIPMENTS LTD. VERSUS STATE OF TAMIL NADU AND ANOTHER [1998 (6) TMI 559 - MADRAS HIGH COURT]. Hence, we have no hesitation to hold that the impugned order passed by the Tribunal is incorrect.
The second respondent is directed to grant exemption to the petitioner – assessee under Section 6(2)(b) of the Central Sales Tax Act on the turnover for the assessment year under consideration - Petition allowed - decided in favor of petitioner.
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2021 (2) TMI 975
Review petition - Eligibility to get the benefit of subsidy in terms of the Chhattisgarh Naye Cinemagharon Ya Multiplex Cinemagharon Ke Nirman Ko Protsahan Yojna Ke Sahayta Anudan Niyam, 1982 - eligibility not being the ‘Swamis’ (Proprietor) which was not properly considered - scope of Rule 3 of the 1982 Rules with reference to the date of commencement of operation of Cinema Hall/Multiplex was never adjudicated by the Bench while finalizing the matter - HELD THAT:- The provision contained herein is not with regard to imposition to any additional burden but is with regard to the "relaxation" given, by deleting the rider under Rule 3 of the 1982 Rules. The Rules of 1982 clearly provide for subsidy in respect of the Cinema Hall/Multiplex, construction of which was started after 01.07.1991. Of course, there was a rider that the benefit will be available, subject to the condition that no other Cinema Hall/Multiplex was existing within a radius of 10 KMs. This rider came to be deleted as per the amendment dated 04.03.2010, whereby the benefit of granting subsidy was widened to bring the then non-eligible lot also within the eligibility net. Since the benefit of the subsidy was intended to be paid for a total period of '8 years', the persons who were invited to set up the Cinema Halls/Multiplexes to augment the revenue of the State and who answered the call in the 'positive', despite the hard situations prevailing prior to 04.03.2010, cannot be pushed down for ever, when the barrier was lifted from 04.03.2010 onwards, at least in respect of the remaining period which alone has been ordered by the learned Single Judge.
The amendment involved herein, bringing about relaxation for deciding the question of eligibility by deleting the rider which existed earlier under Rule 3 of the 1982 Rules, with effect from 04.03.2010, is different from a rider bringing in some new burden or liability, to be declared as only prospective. This being the position, the intention of the law makers to provide the benefit of subsidy, by way of refund of entertainment tax in respect of all constructions of Cinema Halls/Multiplexes after 01.07.1991 should also take in the parties who have started the operation prior to the cutoff date of 04.03.2010, for the remaining period after 04.03.2010, if the benefit under the Rules is a still continuing one. As it stands so, there is no merit in the contention with reference to the alleged prospectivity of deletion of the rider w.e.f. 04.03.2010. In the said circumstance, we do not find any error apparent on the face of record under this head as well.
There is no error apparent on the face of record to invoke the power of review and to grant the relief - Review petition dismissed.
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