TMI Blog2005 (8) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents to dispose of the application preferred by the petitioner on December 26, 2003 (annexure 6 to the writ petition), as early as possible, preferably within a time frame. The issue involved in the present case is whether the petitioner is entitled to avail the benefit of set-off of sales tax with effect from January 1, 2004 in terms of the Jharkhand Industrial Policy, 2001. To determine the issue, it is necessary to notice the relevant facts, laws, Jharkhand Industrial Policy, 2001 and circulars/guide lines issued by the respondents, from time to time, as discussed hereunder. The then State of Bihar issued an Industrial Policy in the year 1995, known as "Bihar Industrial Policy, 1995", whereunder provision was made to grant benefit of "exemption of sales tax on purchase of raw materials and on sale of finished goods" to industrial units. Two notifications bearing S. O. Nos. 478 and 479, both dated December 22, 1995 were issued by the then "State of Bihar" providing the benefit of exemption of sales tax on purchase of raw materials and on sale of finished goods to new industrial units. The petitioner-company, manufacturer of diesel engines and components, started its com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores to the petitioner Tata Cummins Ltd., the court directed the State of Jharkhand and the competent authority of the Commercial Taxes Department to adjust the refundable amount, towards sales tax as was due from the petitioner. Tata Cummins Ltd., for the accounting year commencing from April 1, 2004. The State of Jharkhand moved, against the said judgment before the Supreme Court in which leave having been granted, in Civil Appeal No. 10272 of 2003 is pending before the Supreme Court, wherein the apex Court by its order dated March 26, 2004 directed the appellant State of Jharkhand to adjust the refundable amount only to the extent of Rs. 40 crores, for the accounting year commencing from April 1, 2004, with further direction to refund the balance amount to the petitioner, Tata Cummins Ltd., the company having assured that if the decision goes against it, the amount refunded to the company, shall be paid back to the State of Jharkhand with nine per cent interest. After the first Jharkhand Industrial Policy, 2001 was given effect to vide notification being S. O. Nos. 65, 66 and 67 all dated January 12, 2002, the petitioner applied for and requested to "set-off" the sales tax wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the benefit of tax exemption or deferment as on the effective date, is relevant or important and it is not prohibited and as such non-availment as on the effective date is not required as a condition for grant of benefit of "set-off" under clause 28.1. The only requirement is that the unit should not in presenti, be availing of the benefit of tax exemption or deferment under an earlier notification, simultaneously with the availment of "set-off" under clause 28.1. The learned Senior Counsel, for the petitioner referred to annexure 3 of the Jharkhand Industrial Policy, 2001, which provides the list of industries, which are not eligible for incentives. It was submitted that clause 28.1 cannot be read was a non-eligibility clause or as a disentitlement clause in view of specific list of non-eligible industries having been shown in annexure 3 to the Industrial Policy, 2001. The learned counsel referred to the decision in the case of Suprabhat Steel Ltd. reported in [1999] 112 STC 258, wherein the Supreme Court held that a notification which is framed and issued in order to give effect to the industrial policy announced and issued by the State Government necessarily has to be full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State, of finished products made out from such raw materials subject to a limitation of six months or the same financial year from the date of purchase of such raw materials." As under section 22 of the Bihar Finance Act, 1981 the State Government is competent to adjust tax in certain cases in the interest of industrial growth, the benefit of "set-off of sales tax" having been announced vide Jharkhand Industrial Policy 2001, the State of Jharkhand in exercise of power under section 22 of the Bihar Finance Act, 1981, issued different notifications bearing S. O. Nos. 65, 66 and 67, all dated January 12, 2002 allowing such benefits. Sub-clause (2) of clause (1) of S. O. No. 65, dated January 12, 2002 also defines "Existing Industrial Unit", which means such industrial units which has started commercial production prior to the effective date. Sub-clause (3) of clause (1) of S. O. No. 65, defines "New Industrial Units" which means industrial units which started commercial production between November 15, 2000 and March 31, 2005. "Effective date" has been made clear under sub-clause (5) of clause (1) of S. O. No. 65, which is November 15, 2000, i.e., the date when the successor S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such existing units which have not availed any kind of benefits such as tax deferment or tax-free purchase or tax-free sales on the basis of any notification prior to November 15, 2000, are entitled to the facility of "set-off of sales tax" under the new Jharkhand Industrial Policy, 2001 and Notification S. O. No. 65 dated January 12, 2002. In the present case, there being no ambiguity nor there being any conflict between clause (2) of Notification S. O. No. 65 dated January 12, 2002 and clause 28.1 of the Jharkhand Industrial Policy, 2001, meaning of both the provisions being same, no other interpretation of clause 28.1 can be made. Admittedly, the petitioner applied for the benefit of sales tax deferment for a period of eight years, i.e., up to December 31, 2003 under the old Bihar Industrial Policy, 1995 read with Notification S. O. Nos. 478 and 479, both dated December 22, 1995. Such prayer has been allowed in its favour by this court in W. P. CO No. 2587 of 2003 (Tata Cummins Limited v. State of Jharkhand) reported in [2006] 145 STC 323 ; [2003] 4 JLJR 541, though said judgment has been challenged by the State of Jharkhand before the Supreme Court in Civil Appeal No. 1027 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
