TMI Blog2019 (8) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... DESH HIGH COURT] , the respondents could not have made applicable the subsequent notification dated 09.06.2000 with retrospective effect. The impugned orders dated 22.02.2005 (Annexure-P/16) and 22.02.2005 (Annexure-P/20) are hereby quashed and the respondents are directed to extend the facility of tax exemption as per notification dated 14.09.1998, which was in force prior to the amendment done in the notification while amending the notification dated 14.09.1998 on 09.06.2000. The subsequent notification dated 09.06.2000 to the extent, it has been made applicable retrospectively to the petitioner's unit, is also hereby quashed - Petition allowed. - Writ Petition No.484/2006 - - - Dated:- 5-8-2019 - S.C. Sharma And Shailendra Shukla JJ. For the Petitioner : Shri P.M. Choudhary, learned senior counsel along with Shri Anand Prabhawalkar, learned counsel ORDER The petitioner before this Court, Dhar Automotive Private Limited, a company registered under the Companies Act, 1956, has filed this present petition for quashment of notification dated 09.06.2000 issued by the respondents amending their earlier incentive notification dated 14.09.1998, by which, exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercon (India) Limited, a company having expertise in the field of Wind Energy for establishing a unit. M/s Enercon (India) Limited submitted its offer and the petitioner / Company issued a work order on 09.12.1999 to M/s Enercon (India) Limited. Thereafter, the petitioner submitted an application on 26.12.1999 for approval of the project to M.P. Urja Vikas Nigam along with a demand draft of ₹ 80,000/- and again, as no approval was accorded, issued a reminder on 04.01.2000 to M.P. Urja Vikas Nigam for approval in respect of proposed wind mill. 06. The petitioner, thereafter, vide letter dated 26.01.2000 also applied for permission under Section 44 of the Electricity Supply Act, 1948 to install and run 2 x 230 KW Generation and to connect the wind farm to their existing 32 KV line. 07. While all this was going on, the M.P. Urja Vikas Nigam vide letter dated 17.02.2000 granted approval of the wind farm of the petitioner and the M.P. Electricity Board vide letter dated 18.03.2000 also granted its principal permission for installation and running of the Wind Power Unit. The petitioner also purchased two pieces of land at Village Anantpur for establishing the Wind Electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the notification dated 14.09.1998. 13. A rejoinder has been filed in the matter and the petitioner has stated that the petitioner has commenced its commercial production on 31.03.2000. The commissioning certificate was issued much prior to issuance of the amending notification dated 09.06.2000, and therefore, the petitioner is entitled for the benefit flowing out of the earlier notification dated 14.09.1998. 14. This Court has carefully gone through the writ petition and the reply as well as the rejoinder filed by the petitioner. The chronological details in respect of the events, which took place in the present case, are as under:- DATE PARTICULAR 23.10.1981 The petitioner company incorporated and registered as a Pvt. Ltd. Company. Copy of incorporation certificate marked as Annexure-A/1 to the petition. 14.09.1998 Notification No.1-32-94-ST-V(69) issued by the Government exercising the powers conferred by M.P. General Sales Tax Act, 1958 and sub-section (5) of Section 8 of the Central Sales Tax Act, 1955 exempting dealer covered by the said notification from s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition). 17.02.2000 The M.P. Urja Vikas Nigam sent a letter for confirming and granting approval of the wind farm of the petitioner (marked as Annexure-P/8 to the petition). 18.03.2000 The MPEB sent a letter and granted principle permission for installation and running of wind power unit of the wind power unit (marked as Annexure-P/9 to the petition). 31.03.2000 THE PETITIONER'S POWER UNIT COMMENCED ITS POWER PRODUCTION (COPY OF COMMISSIONING CERTIFICATE MARKED AS ANNEXURE-P/13 TO THE PETITION). 25.05.2000 After the commencement of the power generation, the petitioner applied for grant of eligibility certificate under the notification No.A-32-94-ST-V(69) dated 14.09.1998 i.e. under the original notification in which there was not cut-off dated (copy of application filed before the competent authority Annexure-P/14). Till then, (i.e. till date of commencement of production and even till date of application for issue of eligibility certificate) the impugned notification dated 09.06.2000 introducing cut-off date for commencem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.04.2005 The petitioner received notice from office of Dy. Commissioner, Commercial Tax Indore to present their case before them. 29.10.2005 Communication from Additional Secretary, Energy Department Government of M.P. Informing that Review Application of the petitioner is also rejected by SLC. 15. The aforesaid details establish that it was only on account of notification issued by the State of Madhya Pradesh dated 14.09.1998, which has been quoted above, the petitioner / Company took a decision to establish a Generating Unit based on wind energy. 16. The M.P. Urja Vikas Nigam granted approval in respect of the Wind Farm of the petitioner on 17.02.2000. The Madhya Pradesh Electricity Board granted permission for installation and running of Wind Power Unit on 18.03.2000. The petitioner started its production on 31.03.2000. A commissioning certificate was also issued in favour of the petitioner on 31.03.2000. The subsequent notification was issued by the State Government on 09.06.2000, meaning thereby, after the Unit was set up by the petitioner and after the commissioning certificate was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of March,2007, but vide notification dated 12th April,2007 it was restricted up to 31 st of March,2004, meaning thereby, for a period near about 3 years, petitioner has been held liable for payment of entry tax for which, there was no power with the State Government to withdraw such exemption with retrospective effect. If an exemption was granted by the State Government by issuing continuous two notifications, then the aforesaid exemption could not have been withdrawn by the State Government vide Annexure P/1 with retrospective effect. Issuance of Notification (Annexure P/1) is having far reaching consequences on the petitioner, and in such a situation, the State Government could not have withdrawn such exemption with retrospective effect. 36- Again a Division of this Court in the case of Dhannalal Labhchand Others Vs. Sales Tax Officer, Seoni Anr. reported in (2005) 5 STJ 356 in paragraphs No.2 and 3 has held as under:- 2. The first ground which has been been urged by the learned counsel for the petitioners in challenge to the aforesaid notification dated 07/01/1981 is that even though Section 12(2) of the Act permits that any notification issued under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 This copy was printed from VATLaws licensed to: Rsgoyal By delegated legislation, a vested right cannot be taken away. Thus, amend ments carried out in 1996, cannot take away the rights of dealer with ret rospective effect. He also placed reliance on the decision of the apex court in the case of State of Haryana v. Anil Pesticides Ltd. reported as [2011] 19 STJ 11 (SC), Ruchi Fabrics Ltd. v. State of M. P. reported as [2000] 117 STC 273 (SC); [1993] 32 VKN 449, State of Madhya Pradesh v. G. S. Dall and Flour Mills reported as [1991] 80 STC 138 (SC); [1991] 187 ITR 478 (SC); 24 VKN 224 and the Division Bench decision of the M. P. High Court in the case of Ambika Refinery v. State of M. P. reported as [2012] 53 VST 146 (MP); [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 March 31, 2006 that dealers who are continuing to avail of facility of exemption, which availed of the facility over the unexpired period of eligibility certificate shall al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective effect. 23. In the result, this petition is allowed in part notification dated March 31, 2006 and September 15, 2006, insofar as it relates to the petitioner only, restricting the withdrawal of exemption retrospectively with effect from March 31, 2006 is not sustainable under the law. The petitioner who was extended the benefit of exemption from payment of tax shall be entitled to get the aforesaid exemption till September 15, 2006. The impugned orders are quashed to the extent as indicated herein above. 38- In light of the aforesaid judgments, it can be safely gathered that the subsequent notification cannot be construed to have a retrospective operation. A right which has already accrued in favour of the petitioner cannot be extinguished by a subsequent notification, specially when the petitioner has acted upon on the basis of first notification dated 28/02/1995. 39- Resultantly, the impugned notification to the extent it is made applicable with retrospective effect is hereby quashed. The matter is remanded back to the State Level Committee to pass a fresh order by taking into account the first notification issued by the State Government dated 28/02/1995. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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