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TMI Blog2015 (3) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... as established a hotel at Indore, in the Vijay Nagar area in the name and style of 'Sayaji Hotels Ltd' and it's business operation commenced in the year 1996. It is registered as a dealer under the Commercial Tax Act, 1994, Central Sales Tax Act, 1956 and M.P. Hotel Tatha Vas Grihon me Vilas Vastuon Par Kar Adhiniyam, 1988 (for short the Luxury Tax Act, 1988). 3. The Government of M.P. in order to promote the tourism in the State had framed new Tourism Policy 1995. A special package of incentives for the tourism industry was prepared. The policy provided specific incentive by way of providing land, exemption from luxury tax, sales tax and entertainment tax. 4. Notification No.-3-7-95-ST-V (72) dated 5.9.1995 under Luxury Tax Act, exempted hotelier or class of hoteliers for the period of 10 years from payment of tax under the Luxury Tax Act, who have established or likely to establish in the State a new hotel under the new Tourism policy 1995, having made a capital investment of not less than 50 lakhs in which at least 10 rooms have been constructed from the date of commercial operation. Later on vide Notification No.A-3-30-96-ST-V(39) dated 3.7.1998, the exemption was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner's own showing, it started its commercial operation as on 31.1.1995 and, therefore, it is presumed that the petitioner had been availing exemption as per the terms of eligibility certificate. 9. From 1.4.2006 M.P. VAT Act, 2002, came into force, certain new concepts like rebate of input tax have been incorporated. Section 14 of the VAT Act provides rebate of input tax to a registered dealer in certain circumstances. The Government of M.P. in exercise of powers conferred by Sub Clause (e) of Clause (i) of Section 72 of VAT Act 2002 and sub Section (5) of Section 8 of Central Sales Tax Act, 1956 has notified a scheme in respect of industrial units or hotels eligible to avail facility of exemption from payment of tax and in the notification aspect of exemption already being availed by the dealers under the previous notifications has been reconciled. 10. Clauses 2,3,4,5 and 7 of Notification No.(31) dated 31.3.2006 are relevant which reads as under :- "2. The registered dealers who are eligible to avail the facility of exemption from payment of tax under the said notifications immediately before the commencement of the VAT Adhiniyam and would have continued to be so eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of refund adjustment order. The provisions of Section 37 of the VAT Adhiniyam shall mutatis mutandis apply to such adjustment." 11. Clause 3 (1) of the notification prescribes that facility shall be available for the unexpired period of eligibility certificate or to the extent of balance of cumulative quantum of tax as on 1.4.2006, which ever is earlier. Clause 3(2) further prescribes that dealer shall make purchase from registered dealers after payment of tax and be eligible to collect tax payable on goods, manufactured and sold within the State. Clause 3(a) further prescribes that all the taxable goods, the dealer shall compute his tax liability by deducting input tax rebate from tax collected on sales within the State and being eligible to retain amount of tax collected, which is in excess of input tax rebate, amount to retain shall be included in computation of cumulative quantum of tax benefit. Clause 3(4) (5) (7) makes it clear that dealer shall be eligible to first collect and adjust balance of input tax rebate if any, against any other tax liability of self and to transfer the remaining balance for adjustment against tax liability of any other registered dealer, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Apex Court in the case of State of Haryana v. Anil Pesticides Ltd. & Anr, reported as (2011) 19 STJ 11 (SC), Ruchi Fabrics Ltd. v. State of M.P. & Ors., reported as 1993 (32) VKN 449, State of M.P. & Anr. v. G.S. Dall & Flour Mills & Ors. reported as 24 VKN 224 and the Division Bench decision of M.P. High Court in the case of Ambika Refinery v. State of M.P. & Ors, reported as (2012) 20 STJ 563 and submitted that the amendment could not be given retrospective effect and could not have taken away the rights of the petitioner with retrospective effect and prayed for its quashment. 15. It is clear from the specific provisions contained in the notification dated 31.3.2006 that dealers who are continuing to avail facility of exemption, which availed the facility over the unexpired period of eligibility certificate shall also be eligible to first adjust balance of input tax rebate if any, against any other tax liability of self and to transfer remaining balance for adjustment against tax liability of any other registered dealer, if desired. Therefore, the dealer who was continuing with the facility of exemption under the eligibility certificate earlier issued has not been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal ground to question any of the provisions contained in the impugned notification no.31 dated 31.3.2006 and also to how enforceability of these notifications w.e.f. 1.4.2006 are violative of Article 14 and 19 (1) (g) of the Constitution. As per terms and conditions of the eligibility certificate the petitioner was entitled to claim the facility of exemption during the life time of eligibility certificate and not after expiry of the same. Initially, the petitioner was granted the benefit for a period of 10 years w.e.f. 31.1.1995 to 30.1.2005. Thereafter, by way of amendment the State level committee amended the period of exemption up to 4.11.2006. 21. We, in this case, are not concerned with the quantam of exemption to which the petitioner may be entitled to, but only with the interpretation with the relevant provision which arise for consideration before us. 22. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. 23. The Hon'ble Supreme Court held that a subordinate legislation can be given a retrospecti ..... 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