TMI Blog2008 (11) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... re could be condonation of delay beyond 60 days under section 25 of the SICA, is not a correct interpretation of law. The said provision cannot be read as mandatory, as has been held in several decisions (see Kailash v. Nanhku - 2005 (4) TMI 542 - SUPREME COURT). In any case, even if the said view is correct, this court is not debarred from setting aside order of the BIFR. We also take note of the conduct of respondent No. 3 of having not paid the amount of ₹ 796.11 lacs as per direction of the AAIFR in order dated February 12, 2008 reproduced in para 6 above and the statement made on behalf of the State that the unit has not been revived. Thus the impugned order passed by the BIFR is not sustainable. W.P allowed. - C.W.P No. 7965 of 2008 - - - Dated:- 25-11-2008 - ADARSH KUMAR GOEL AND MITTAL L.N. , JJ. The judgment of the court was delivered by ADARSH KUMAR GOEL J. This petition has been filed by the State of Haryana to quash order passed by the Board of Industrial and Financial Reconstruction (BIFR) dated July 5, 2001, annexure P3 and order passed by the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) dated February 12, 2008, annexure P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The BIFR, however, issued and reiterated the show-cause notice proposing to take action under section 33 of the SICA for not implementing the Scheme. The petitioner-State vide letter dated March 31, 2003, annexure P8 stated that the matter was to be considered by the Steering Committee and the Steering Committee vide its order dated August 31, 2003, annexure P10, concluded that the relief contemplated in the Scheme was not permissible. The conclusions of the Steering Committee were as under: (a) that as per the recommendations of Excise and Taxation Department, reliefs and concession relating to sales tax benefits as envisaged in the sanctioned rehabilitation scheme are of non-implementable in nature. (b) that the company was sanctioned sales tax deferment benefit to the tune of Rs. 3,103.65 lacs for nine years with effect from May 7, 1993 to May 6, 2002. It availed tax concession by way of deferment of payment of tax to the tune of Rs. 20,75,73,628 from May 7, 1993 to September 29, 2000 under rule 28A. Thereafter, company exercised its option under rule 28C and availed Rs. 65,30,521 from September 30, 2000 to October 16, 2001 as a new unit despite the fact that company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t observations are as under: 10. The Bench, on consideration of the facts, merits of the case, materials on record and also the submissions made by the concerned agencies present in the today's notes that the para 4.5(ii) and 4.5(iii) of SS-01, i.e., the paras relating to reliefs from the 'sales tax department' of the GOH are contradictory to each other and, besides this, the para 4.5(ii) stipulates that the sales tax deferment would be permitted to the company for an indefinite period. The Bench further notes that such deferment of sales tax vis-a-vis repayment(s) thereof by the company(ies) are generally permitted for the specific predetermined period(s). The Bench also notes that the company has not submitted the revised modified revival proposal, as was directed by the board in its last RH held on September 4, 2003... The respondent No. 3 challenged the above observations by filing an appeal before the AAIFR, which was dismissed but in para 15 of the order dated February 12, 2008, the AAIFR set aside observations in order dated October 26, 2006. It was directed that respondent No. 3 was under obligation to repay the amount of sales tax collected under the Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assistance by the State. It was also submitted that the Scheme framed by the BIFR could not cover setting aside of statutory right of petitioner to recover sales tax deferred under the provisions of the State statute, particularly, when respondent No. 3 had already collected the tax under the provisions of the sales tax law. The BIFR could not allow retention of tax collected, which was required to be deposited with the State. For the same reason, the BIFR could not give a direction for exemption from tax liability when such exemption was not permissible under the statute or the Statutory Rules, which submission, the petitioner-State made before the BIFR. Thirdly, it is pointed out that the order of the BIFR was arbitrary, as the view point of the petitioner-State had not been taken into account. The AAIFR erred in dismissing the appeal and the application for recall. Respondent No. 3 has filed a reply. It has been, inter alia, stated that the State of Haryana was duly represented before the BIFR when order sanctioning Scheme dated July 5, 2001 was passed. Against the order of the BIFR dated July 5, 2001, appeal of the State of Haryana was dismissed and a review petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e P2 and August 31, 2003, annexure P10, was of no consequence. He also submitted that prayer to challenge order of AAIFR, annexures P14 and P15, could not be granted in absence of a specific prayer in the petition. He placed reliance on judgment of the honourable Supreme Court in Diamond Plastic Industries v. Government of Andhra Pradesh AIR 1997 SC 2775, order of the Delhi High Court dated November 16, 2005 in VDCS Enterprises v. Union of India [2009] 22 VST 220 (Delhi) [App] (W.P. (C) No. 4976 of 2003) and judgment of the Andhra Pradesh High Court in VSR Murthi v. Engineer in Chief (Irrigation Wing) I and CAD Department, Government of A.P. [1997] 5 ALT 696, on the question of Scheme of SICA. Question for consideration is whether the impugned Scheme is arbitrary for altogether ignoring objections put forward by the petitioner-State and is hit by section 19(3) of the SICA and whether dismissal of appeal of the petitioner by the AAIFR calls for interference. As regards the scope of jurisdiction of BIFR, we find that though, the object of a Scheme to be framed by BIFR is to rehabilitate a potentially sick unit by framing an appropriate Scheme contemplating preventive, ameliorat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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