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1989 (9) TMI 367

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..... angalbari in the district of Maldah, West Bengal, for manufacturing biscuits, a notified commodity under section 25 of the said Act. The petitioner's said unit was duly registered with the Director of Cottage and Small-scale Industries on 3rd January, 1987, as a small-scale industrial unit for manufacturing biscuits. The petitioner is a dealer within the meaning of section 28 of the said Act and as also a registered dealer under the Central Sales Tax Act. The petitioner's said unit started manufacturing the said notified commodity, i.e., biscuits for the first time after 1st April, 1980 and first sale of such notified commodity, viz., biscuits by the said unit was made on 16th November, 1985. The respondent No. 5, the State of West Bengal, in exercise of the powers conferred upon it under section 4AA of the said Act by a Notification No. 1177-F.T. dated 31st March, 1983, made representation to the public that the exemption from tax will be allowed to any dealer, who has sold notified goods manufactured by it in its newly set up smallscale industry. The said notification, inter alia, provided that such exemption would be allowed during a period of five years since the date of fi .....

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..... 1985, the date of first sale to which there is no dispute. It is, however, the contention of the respondent that the law required that the eligibility certificate as granted to the petitioner should be made effective from the date of the application as has been done in this case. Mr. S.N. Bose, the learned counsel for the respondent, has fairly conceded at the time of hearing that the petitioner should be entitled to exemption benefit from the date of first sale, i.e., 16th November, 1985, which is admittedly the date of first sale of the manufactured notified commodity and not from the date on which the said application was made. Mr. Bose has submitted that necessary correction would be made and in this regard necessary direction may be given by this Court. In view of the submissions made by Mr. Gupta and also on the submission of Mr. Bose on behalf of the respondents, I think that the appropriate order should be to direct the respondent-authorities to amend the eligibility certificate and extend the benefit of the exemption from the date of the first sale, i.e., 16th November, 1985. I, therefore, direct the respondent-authorities to make necessary amendment in the eligibil .....

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..... contention he relied on the decisions reported in [1971] 28 STC 672 (SC) (Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income-tax) which is a decision of the Supreme Court and another decision of the Andhra Pradesh High Court reported in the same volume of SALES TAX CASES [1971] 28 STC 399 [FB] (State of Andhra Pradesh v. Murali Cafe). Mr. Bose has also referred to section 4AAA(2)(d) and submitted that there is no notification exempting the turnover tax. Therefore, according to Mr. Bose, if the petitioner is liable to pay turnover tax, then no declaration forms can be issued to the petitioner until there is a receipted challan for payment of turnover tax. It has been submitted by Mr. Bose that there is no dispute that no declaration forms can be issued unless there is payment of turnover tax, if the dealer concerned is liable to pay turnover tax. Mr. Bose in this context, has relied on the judgment of this Court reported in [1987] 20 STA 132 (Burlap Laminating Plastic Private Ltd. v. Commercial Tax Officer) where it has been held by this Court that the dealer is not entitled to any declaration forms where the dealer has become defaulter in respect of the payment of the turnove .....

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..... igibility in the form appended to this notification granted by the appropriate Assistant Commissioner in this behalf for such period as mentioned in the said certificate. Explanation.-For the purpose of this notification 'newly set up smallscale industry' shall mean a new industrial unit, (i) with an investment up to rupees thirty-five lakhs on plant and machinery, excluding the value of land and building; (ii) which is registered with the Cottage and Small-scale Industries Department of the Government of West Bengal; (iii) which starts production for the first time on or after the 1st April, 1980; (iv) which is liable to pay tax as a dealer under the said Act, but shall not include any expansion, addition or modification of an existing industrial unit; (v) which is not established solely or substantially with the plant or machinery- (a) of another newly set up small-scale industry which earlier availed of the exemption under this notification or under Notification No. 1802-F.T. dated the 1st April, 1976 and which is not engaged in the business of manufacturing such plant and machinery, or (b) hired, leased or rented from, or lent by a manufactured dealer registered .....

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..... 4 STC 73 (S. Kodar v. State of Kerala) and [1983] 52 STC 13 (Raj) (Union of India v. State of Rajasthan). It is further submitted by Mr. Gupta that the said notification directs that no tax shall be payable by a newly set up small-scale industry on sale of notified commodity. It is, in the submission of Mr. Gupta, that the said notification exempts all taxes of whatever nature that may be chargeable under this Act. It has further been submitted by Mr. Gupta that the notification granting tax holiday benefit is dated 31st March, 1983, while section 4AAA came into effect from 1st April, 1979. If it was the intention of the authority concerned that the exemption granted by the said notification would not cover the payment of turnover tax, then suitable provisions would have been made in this regard. Mr. Gupta, therefore, submits that the exemption covers and includes turnover tax as well, particularly when it is specifically provided for in the said Notification dated 31st March, 1983, that "no tax shall be payable". Regarding the decision of this Court as reported in [1987] 20 STA 132 (Burlap Laminating Plastic Private Ltd. v. Commercial Tax Officer), relied on by Mr. Bose, the .....

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