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TMI Blog1983 (6) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 1809-F.T. dated 15th April, 1976 under section 4AA of the West Bengal Sales Tax Act, 1954 and the said notification was subsequently amended by another Notification No. 1658 dated 1st April, 1980. Under the said notification, an assessee is entitled to the certificate of eligibility under which he will not be required to pay sales tax for the period specified in the said notification provided the following conditions are fulfilled: (i) the newly set up small-scale industrial unit is registered with the Government of West Bengal, (ii) the investment of the dealer on plant and machinery excluding land and building does not exceed Rs. 10 lakhs, (iii) the dealer starts production for the first time after 31st March, 1976, (iv) the dealer keeps separate accounts in respect of such newly set up small-scale industrial unit, issues serially numbered cash/credit memos, for sale of goods manufactured in such industrial unit, keeps vouchers and other documents for purchases of plant and machinery for establishment of such industrial unit and maintains other records to prove that sales claimed exempt under this clause were of goods manufactured in such an industrial unit set up by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, dropped the proceedings against the petitioner-firm demanding security of Rs. 1,00,000 under section 5(1)(c) of the West Bengal Sales Tax Act, 1954 and the said order is annexure C to the writ petition. On 25th May, 1981 the Commercial Tax Officer, Burdwan Range, completed the assessment for the period, 4th quarter of 1384 and 1385 B.S., inter alia holding that the petitioner-firm was not entitled to get the eligibility certificate as the total investment on plant and machinery of the petitioner-firm was more than Rs. 10 lakhs and the Assistant Commissioner of Commercial Taxes, Asansol Circle, also rejected the application for eligibility certificate of the petitioner. The petitioner thereafter made an application for revision before the Additional Commissioner of Commercial Taxes against the said decision of the Assistant Commissioner of Commercial Taxes, Asansol Circle, rejecting the application for eligibility certificate and the Additional Commissioner of Commercial Taxes, Durgapur, also rejected the said revisional application affirming the order passed by the Assistant Commissioner, Asansol Circle. In the instant writ petition the said decision of the Additional Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be included in calculating the value of plant and machinery but the said guideline provided for in the press note was relevant for determining whether a particular industry was a small-scale industry or not and in the present dispute as to whether or not the costs of installation would also be included in the computation of the total investment in plant and machinery, the said guideline was not at all relevant. According to the Additional Commissioner of Commercial Taxes, the expression "investment of the dealer on plant and machinery excluding land and building" has a comprehensive import and such expression is unambiguous and clear and does not admit two interpretations. The intention of the notification is not to extend the benefit of tax holiday to all and sundry small-scale industrial units and it was not the intention of the press note that simple registration of a small-scale industrial unit with the small-scale industries department of the Government of West Bengal ipso facto will earn a tax holiday. The use of the expression "excluding land and building" in the notification issued by the State Government for grant of eligibility certificate by necessary implication means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 then for the same plant and machinery X will be exempted from payment of sales tax but Y will be saddled with the liability of sales tax and will not get the benefit of tax holiday simply because he had lesser technical expertise and the costs of installation because of the distance from the place from which the plant and machinery was purchased or for similar reasons were more in the case of Y. Mr. Banerjee has also contended that the petitioner on the basis of the notification issued by the State Government financially altered his position for getting tax holidays and as a matter of fact made an application for eligibility certificate sometime in the year 1977. As one of the conditions for getting such eligibility certificate is that the assessee should not charge sales tax from the customers, the petitioner-firm had also not realised any sales tax. Such application for eligibility certificate was not disposed of for about three years and only on 7th March, 1980 the Commercial Tax Officer asked the petitioner-firm to show cause why the firm should not furnish a security for Rs. 1 lakh. After the petitioner-firm had showed cause on 16th May, 1981 such proceeding was also dropped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government in issuing the said notification for eligibility certificate is quite clear that the total investment of the assessee for plant and machinery including the costs of installation should be taken into consideration because without the installation of the plant and machinery no useful purpose can be served and the plant and machinery cannot be utilised for manufacture and plant and machinery must be viewed in their totality and de hors installation, the plant cannot be conceived of. Mr. Dutt has also submitted that the dropping of the proceeding for furnishing security and/or the adjudication on the application for eligibility certificate after a lapse of several years will not ipso facto entitle the petitioner to get the eligibility certificate. On the face of the notification, the petitioner was aware that the total investment made by the petitioner-firm towards the plant and machinery including the installation charge was to be considered for being entitled to get the eligibility certificate and as the petitioner-firm had to incur total expenditure for the plant and machinery including the installation charges for more than Rs. 10 lakhs, the petitioner-firm was awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) of the conditions for entitlement to eligibility certificate, it will also appear that the requirement is that assessee keeps "vouchers and other documents for purchases of plant and machinery for establishment of such industrial unit and maintains other records to prove that sales claimed exempt under this clause were of goods manufactured in such an industrial unit set up by him and that no amount by way of sales tax has been realised by him in respect of such sales". There is no requirement to maintain vouchers or records relating to installation charges. In my view, in the aforesaid facts, it may be reasonably contended that the cost for purchase of plant and machinery and not the cost of installation was meant in the expression "investment of the dealer on plant and machinery excluding land and building" as referred to in the preceding clause, namely, clause (ii). In the circumstances, this writ petition succeeds and the respondents are directed to issue the eligibility certificate as prayed for by the petitioner-firm. There will be no order as to costs. Mr. Dutt, the learned counsel appearing for the State-respondents, has asked for stay of the operation of the judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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