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2016 (12) TMI 258 - RAJASTHAN HIGH COURT

2016 (12) TMI 258 - RAJASTHAN HIGH COURT - TMI - Benefit of Sales Tax Incentive Scheme 1989 - manufacturers of Oil - jurisdiction of AO - Held that: - the benefit is only available upto 4.4.1994 and not later- on, and since in the instant cases, admittedly the assessment years involved are of 1995-96 on-wards, therefore, no benefit was available to the respondent assessees. Once the apex court has held that benefits are available upto 4.4.1994, no other authority could have taken any other view. .....

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Tax Board and DC(A), are hereby quashed and set aside and the order passed by the AO is sustained - decided in favor of AO. - S.B. Sales Tax Revision Petition No. 107, 108, 109, 110, 112, 113/2007 - Dated:- 4-11-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Tanvi Sahai, R. B. Mathur For the Respondent : Devendra Kumar ORDER 1. All these instant petitions are directed against order dt 14.9.2005 passed by the Rajasthan Tax Board, Ajmer, and since the issue raised being identical in all th .....

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9 (4) SCC 368, was of the view that as observed by the apex court, the assessees were not entitled to any benefit after 4.4.1994 and were only entitled to such benefits as per incentive scheme upto 3.4.1994 of the goods and accordingly show cause notice was issued. An explanation was filed by the assessee, however, the AO was not satisfied and held that the judgment of apex court is squarely applicable and thus levied tax and interest. 3. Appeals were preferred before the Dy. Commissioner (Appea .....

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nt dt 1.8.2013 quashed and set aside the orders passed by the Tax Board and upheld the stand of the Revenue taking into consideration the judgments of apex court in State of Rajasthan & Another v. M/s. Mahaveer Oil Industries & Others (1999) 4 SCC 357, and Gopal Oil Mills (supra). She contended that the instant petitions also arises out of the same order of the Tax Board, and once this court has already taken a view on the same impugned order of Tax Board, the judgment on the self same q .....

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t as the assessee is situate at Merta City, District Nagaur, and once the assessee is assessed and situated in District Nagaur, the jurisdiction lies at Jodhpur. (2) It has also been contended that the Tax Board allowed similar petitions in the case of CTO, Beawar v. Vimal Oil Industries, Kekri 4 Sales Tax Today 2631, Gopal Oil Mill v. Assistant Commissioner, Bharatpur 35 RTJS 263 and M/s. Singhania Oil Mill, Khairthal v. Assistant Commissioner, Special Circle, Alwar [Appeal No.557/2002/Alwar, a .....

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(1980) 123 ITR 354 Del. and Suresh Desai & Associates v. CIT (1998) 230 ITR 912 Del. 5.1 Learned counsel also contended that both the Appellate Authorities had correctly come to the conclusion that the benefit was available to the assessee and it is a finding of fact reached by both the Appellate Authorities and the same is required to be upheld. 5.2 Learned counsel for the assessee also contended that interest u/s 58 of the RST Act, 1994 is not leviable and relied on J.K. Synthetics Ltd. v .....

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mer, and both the Appellate Authorities are situate within the jurisdiction of Jaipur Bench. 6.1 Learned counsel for the Revenue also contended that in the three cases where petitions were not filed before this court, were on account of smallness of tax effect, and question of discrimination does not arise. She also contended that the judgment in M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), is a binding judgment on this court on the self same question, and to her knowled .....

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parties and perused the impugned order as well as taken into consideration the judgments relied upon by the parties minutely. The petitions were admitted on the following questions of law :- "Whether the learned Tax Board and the Deputy Commissioner (Appeals) were justified in insisting upon the amendment of the eligibility certificate and permission of the DLSC for giving effect to the judgment of the Hon'ble Supreme Court in the facts of present case? Whether the requirement of corre .....

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g industries was payable under the RST Act after 4.4.1994, would it still require any correction in the eligibility certificate which was nothing but a facit of principle of natural justice and whether the doctrine of useless formality in the facts of the present case would not be attracted in that even if DLSC would have been approached or now approached, it cannot decide contrary to what the Hon'ble Supreme Court had already decided?" 8. Admittedly, the judgment of this court in the c .....

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ned counsel for the assessee about jurisdiction. Admittedly, the case of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), were also of District Nagaur but came up to be decided by this court at Jaipur Bench, so also the instant cases are of District Nagaur and the petitions have been filed before this court at Jaipur in the year 2007, and it would not be appropriate to transfer such cases after almost nine years of pendency before this court. Be that as it may, the apex cour .....

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an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. 26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad (1995) 4 SCC 738), that situs of issue of an order or notification by the Government would come within the meaning of expression &# .....

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atutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. 27. When an o .....

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High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority." (emphasis supplied) 10. Thus, taking into consideration the aforesaid, this court in my opinion has the authority to hear and to dispose of the petitions particularly also because the earlier two petitions in M/s. R.C. Oil Industries and M/s Bajrang Bali .....

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to accept the contention of the learned counsel for the assessee for the reason that there may be several factors, namely smallness of tax effect and other issues and this cannot be a reason for such an objection and the apex court judgments in the case of State of Maharashtra v. Digambar and C.K. Gangadharan & Another v. CIT (supra), supports the view that merely because in some cases the Revenue has not preferred appeal, that does not operate as a bar. It would be appropriate to quote the .....

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enue involved is below a certain amount. Similarly, where the effect of decision is revenue neutral there may not be any need for preferring the appeal. All these certainly provide the foundation for making a departure. 13. In answering the reference, we hold that merely because in some cases the revenue has not preferred appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a p .....

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ary 27, 1994 was also issued by the Director of Industries of the State Government on the same lines under which some benefit has been availed by those industrial units under the State Sales Tax Act. In these circumstances, we consider it appropriate to direct that the unavailed benefit under those eligibility certificates under the State Sales Tax Act would not be available to them but the extent to which the benefit under the State Act has been already availed up to April 4, 1994, the date on .....

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ued under the Rajasthan Sales Tax Act, 1954 is set aside and the notification of 7.5.1990 issued under the Rajasthan Sales Tax Act, 1954 is upheld as valid. The respondents, however, will be entitled to retain the benefits received by them under the incentive scheme framed under the Rajasthan Sales Tax Act upto 4.4.1994. The judgment of the High Court in so far as it quashes the notification of 7.5.1990 issued in respect of the incentive scheme under the Central Sales Tax Act is upheld in the li .....

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enefit was available to the respondent assessees. Once the apex court has held that benefits are available upto 4.4.1994, no other authority could have taken any other view. 15. Now taking into consideration the arguments on merits, in my considered opinion when the self same question has been considered by this court in the case of M/s. R.C. Oil Industries and M/s Bajrang Bali Oil Industries (supra), where this court has extensively considered the judgments of apex court in M/s. Mahaveer Oil In .....

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Mill (supra) and Mahaveer Oil Industries (supra) reversed the judgment of this Court in Lokendra Industries (supra). Thus on perusal of the judgments it is crystal clear that the Hon'ble Apex Court approved the notification dt.07/05/1990 issued under the Rajasthan Sales Tax Act, 1954, however, the Hon'ble Apex Court, considered the hardship having been faced by similarly situated traders, because in the case of Gopal Oil Mills (supra), initially operation of the judgment of the Division .....

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cannot be extended beyond 04/04/1994 or upto the date of judgment rendered by the Hon'ble Apex Court i.e. 20/04/1999. Therefore, by the aforesaid two judgments of the Hon'ble Apex Court, it was directed that the benefits flowing from issuance of certificate or/and incentive scheme was not correct and ultimately the notification of 07/05/1990 was upheld as valid. 11. xxx xxx xxx xxx 12. On perusal of the above, it is apparent that the explanation answers the present controversy which mak .....

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tuated traders, upto the period when the operation of the judgment of this Court was stayed i.e. 04/04/1994 and when benefit has been denied to all such assessees, who were before the Hon'ble Apex Court, then by no stretch of imagination, such a benefit beyond 04/04/1994 can be extended to the present respondents. The benefit for all assessees or for all similarly situated assessees would be extended only upto 04/04/1994 as upheld by Hon'ble the Apex Court and, therefore, in my view, bot .....

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tled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the .....

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of any amount of tax leviable or payable or of any amount of tax, fee, interest or penalty assessed or determined or of any amount or demand otherwise payable, within the specified time under the provisions of this Act or the rules made or notifications issued thereunder, such dealer or person shall be liable to pay interest on such amount at the rate of two per cent per month for the period starting from the day immediately succeeding the date specified for such payment and ending with the day .....

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