TMI Blog2009 (2) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... (i). When the eligibility certificate is withdrawn for non-production of NOC/CLU certificate, and the fact that land was agricultural land was not disclosed, the withdrawal can be traced to ground (i) under sub-rule 8(a)(i) of rule 28A. - Civil Appeal Nos. 1973, 1976, 1982, 1983, 1986 of 2006, 350 of 2007 - - - Dated:- 25-2-2009 - RAVEENDRAN R.V. AND SATHASIVAM P. JJ. Manjeet Singh, Additional Advocate-General, Haryana (T.V. George, Advocate, with him) for the appellants. Subramonium Prasad, Ms. Kusum Choudhary and Himanshu Shekhar, Advocates, for the respondents. -------------------------------------------------- The judgment of the court was delivered by R.V. RAVEENDRAN J. These appeals by special leave by the State of Haryana raise the common question about the validity of withdrawal of the eligibility certificate issued under rule 28A of the Haryana General Sales Tax Rules, 1975 ("the Rules", for short). We may first refer to the relevant legal provisions. Sections 13B and 25A of the Haryana General Sales Tax Act, 1973 (for short, "the Act ") enabled the State Government, if satisfied that it is necessary and expedient so to do in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Time-limit 1 2 3 4 Zone 'B' comprising areas other than zones 'A' and 'C' 125% of fixed capital investment 100% of fixed capital investment but not exceeding Rs. 1.5 crores Provided that in the case of exemption, the benefit shall extend to tax on gross turnover and in the case of deferment, it shall extend to tax on the taxable turnover of goods manufactured by the unit: 7 years ... (5)(a) Every eligible industrial unit which is desirous of availing benefit under this rule shall make an application in form ST 70 in triplicate along with attested copies of the documents mentioned therein to the General Manager, District Industries Centre within 90 days of the date of its going into commercial production or the date of coming into force of this rule, whichever is later. No application shall be entertained if not preferred within time. An application with incomplete or incorrect particulars including the documents required to be attached therewith shall be deemed as having not been made if the applicant fails to complete it on an opportunity afforded to him in this behalf. (5)(b). Applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e General Manager, District Industries Centre for consideration by the Lower Level Screening Committee ("LLSC", for short). Para (3) of the application form for eligibility certificate required the applicant to produce the following annexures with the application: (i) Certificate from chartered accountant regarding estimated liability of sales tax for the period for which application is made. (ii) Certificate from the chartered accountant regarding fixed assets on the date of commercial production including the assets of the unit as erected at site and paid for within 60 days to commercial production. (iii) Latest copy of partnership deed/memorandum and articles of association, list of directors and 10 major shareholders/partners. (iv) Copy of the power of attorney or certified copy of resolution passed by the board of directors authorising a particular person to apply for the grant of eligibility certificate. (v) In case of agricultural land permission from the authority concerned for converting the same for non-agricultural use; and (vi) Copy of Registration No./Letter of intent/industrial licence/ DGTD registration. (emphasis supplied) It is evident from requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H). allowed the said petition and quashed the withdrawal of the eligibility certificate without notice or opportunity of hearing as illegal, reserving liberty to the State Government to proceed afresh in the matter after affording an opportunity to the respondent to show cause against the proposed action. Thereafter the District Industries Centre, Panipat issued a show-cause notice dated March 4, 1998 proposing to withdraw the eligibility certificate on the ground that the respondent had not complied with the basic requirement of furnishing a NOC/CLU certificate from the Town and Country Planning Department for change of land use along with its application in form ST-70. The respondent sent a reply dated March 26, 1988 stating that as its unit was situated in an area surrounded by a large number of factories, the area should be considered as a non-agricultural area. It also contended that the Department was not earlier insisting upon the production of such NOC/CLU certificate if the industry was situated in an area, where several industries were situated. The LLSC gave a hearing on November 3, 1998 to the respondent. During the hearing, the respondent's director was informed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Punjab General Clauses Act, 1898. Therefore, the eligibility certificate could be withdrawn for any valid reason, even if such reason was not enumerated in clause (a) of sub-rule (8). (ii) Having regard to the law relating to town and country planning, no agricultural land or land in the green belt could be used for industrial purposes without obtaining a NOC/CLU certificate. Therefore, the prescribed application form for eligibility certificate specifically required the applicants to produce the NOC/CLU certificate to ensure that the industry does not violate the relevant law; and where such a certificate is not produced, the industrial unit is not entitled to an eligibility certificate. Where an eligibility certificate had been wrongly issued on account of the small-scale industry suppressing the fact that the land where its unit is situated is agricultural land, it is liable to be withdrawn along with all consequential financial benefits extended under the State Industrial Policy. (iii) The High Court, in rendering the impugned judgment ignored a binding decision of a co-ordinate Bench in Nice Spinners Pvt. Ltd. v. State of Haryana [2001] 121 STC 456 (P H), wherein it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be withdrawn, whether reliance can be placed upon the implied power to rescind or withdraw under section 19 of the General Clauses Act, de hors the specific provision in the statute. Section 19 of the Punjab General Clauses Act (corresponding to section 21 of the General Clauses Act, 1897) merely embodies a rule of construction which can be displaced to the extent, the provisions, the scheme and the object of any particular statute indicate a contrary intention. It is intended to apply only where the rules in question do not contain a specific provision governing or regulating the matter. The question whether or not the said rule of construction (the implied power to rescind or withdraw an order) would apply or not, will depend on the subject- matter, context and the effect of the relevant provisions of the statute/rules under which the order is issued. Therefore, the scheme, its object and all relevant provisions have to be examined to decide the application of the said rule of construction. See: State of Bihar v. D.N. Ganguly [1959] SCR 1191, State of Kerala v. K.G. Madhavan Pillai [1988] 4 SCC 669, H.C. Suman v. Rehabilitation Ministry Employees' Co-operative House Building Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ground for withdrawal as it is not one of the grounds/circumstances mentioned in clause (a) of sub-rule (8). Re: Question (ii) But the matter does not end there. The next question will be whether the non-production of NOC/CLU certificate had any bearing on the three circumstances or grounds for withdrawal enumerated in clause (a) of sub- rule (8). Circumstances (ii) and (iii) mentioned in clause (a) of sub-rule (8) do not admittedly apply as this is neither a case of discontinuance/closure of business nor a case of disposal of fixed assets. What therefore remains to be considered is whether it can be said that the eligibility certificate was obtained by the respondent by fraud, deceit, misrepresentation, misstatement or concealment of facts. The prescribed form of application required the applicant to produce certain documents as annexures to the application. Requirements (i) to (iv) and (vi) of the prescribed form (extracted in para 4 above) were specific. Requirement (v) was slightly different. It required "in case of agricultural land", permission from the authority concerned for converting the same for non-agricultural use. This meant that where the unit was situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a material fact relating to nature of land. There is no merit in this contention. If the respondent had disclosed that the land was an agricultural land, but failed to produce the NOC/CLU certificate, and if the Department had issued the eligibility certificate, then it might not have been possible for the Department to withdraw the certificate. In such an event, the assessee could have contended that it had not suppressed any information and the requirement was waived, or that it was not being insisted upon and that therefore non-production was not a ground for cancellation. But where the NOC/CLU certificate was required because the unit was situated in an agricultural land, but the applicant suppressed the fact that the land where the unit was situated was an agricultural land, to avoid production of the NOC/CLU certificate, then it is concealment and mis-representation of a material fact, which squarely falls under sub-rule (8)(a)(i). When the eligibility certificate is withdrawn for non-production of NOC/CLU certificate, and the fact that land was agricultural land was not disclosed, the withdrawal can be traced to ground (i) under sub-rule 8(a)(i) of rule 28A. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
