9911796707
TMI Blog2013 (3) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... f the company the Board passed an order dated March 13, 1996 holding that the company had ceased to be a sick industrial company. Mr. Khaitan, learned senior advocate appearing for the petitionercompany submitted that the company had really ceased to be sick in February 1995 and on that basis the prayer was made but the consequent order was passed by the BIFR on March 13, 1996. Prior to March 13, 1996 the company had been enjoying the benefit of deferment of payment of tax under the old Act. After the West Bengal Sales Tax Act, 1994 was introduced and the remission was made available to the jute industry under section 43 thereof, the petitioner-company applied and obtained such benefit pursuant to an order dated August 31, 2001 for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event it is held that it is only the depreciated value of the fixed capital assets which shall be taken into account and the benefit already enjoyed by way of deferment under sub-section (3) of section 40 shall be deducted, in that case the position will be that what is sought to be given by the right hand is taken away by the left hand. He therefore contended that the gross value of the fixed capital assets has to be ascertained on the basis of the actual investment made by the company and not the depreciated value. He in support of his submission relied on a judgment in the case of Bhai Jaspal Singh v. Assistant Commissioner of Commercial Taxes reported in [2010] 35 VST 456 (SC); [2011] 1 SCC 39, wherein the following view was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate appearing for the State submitted that the method for valuation has succinctly been laid down in the Explanation appended to section 43 and there is no scope for any construction far less a liberal construction. He added that the court should not be unmindful of the fact that there are industrial units who are not enjoying any of these benefits. They also have to survive and to compete with these units who are enjoying the benefit. Therefore an unhealthy situation in the market should not be created. He finally submitted that the valuation has been made on the basis of the facts and figures disclosed by the petitioner itself. The dispute was sought to be raised at a later stage by way of an afterthought in order to extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax under section 40 or remission of tax under section 41 shall be available to a new owner of the business relating to such unit if- (a) the ownership of such business is taken over by, and is transferred to, the new owner who- (i) is deemed to be registered as a transferee under section 99, or (ii) has been registered dealer prior to such transfer, or (iii) gets himself registered on a date subsequent to such transfer, and (b) such unit is rehabilitated or revived by such new owner on or after the appointed day under any scheme approved by the State Government in this behalf. (3) A sick unit, after being rehabilitated or revived, shall be deemed to be a newly set up industrial unit in West Bengal, and the part of the eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revived on or after the 1st day of April, 1993 and before the appointed day, has enjoyed, or has been entitled to enjoy, the benefit of deferment of payment of tax or remission of tax in respect of such unit under the provisions of section 10-I of the Bengal Finance (Sales Tax) Act, 1941 (Ben. Act VI of 1941) or section 8K of the West Bengal Sales Tax Act, 1954 (West Ben. Act IV of 1954), as the case may be, as they stood on the day immediately before the appointed day, shall continue to enjoy or to be entitled to enjoy such benefit in accordance with such provisions of the said Act. Explanation.-The expression 'gross value of fixed capital assets', in relation to a sick industrial unit, shall, for the purposes of section 40 or sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature could have provided that the depreciated cost of the fixed capital assets shall be taken into account. The Legislature has not done so. We are not inclined to accept this submission for the following reasons: (a) Admittedly the fixed capital assets were purchased long before the relevant date. (b) Admittedly the value of those capital assets had depreciated on the date of rehabilitation or revival. (c) Admittedly the depreciated value was indicated in the balance sheet as on the date of rehabilitation or revival of the unit. (d) Admittedly it is on the depreciated value of the fixed capital assets that the benefit was initially claimed by the petitioner. (e) Before the learned Tribunal the following submissions were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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