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C T O BHILWARA versus M/S NITIN SPINNERS LIMITED

High Court of Rajasthan

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C T O BHILWARA v M/S NITIN SPINNERS LIMITED - CR Case No. 768 of 2002 [2007] RD-RJ 1404 (19 March 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

ORDER

Commercial Taxes Officers vs. M/s. Nitin Spinners Ltd.,

Bhilwara Bhilwara

S.B. Civil Sales Tax Revision No.768/2002 against the judgment dated 19.6.2001 passed by the learned Tax

Board, Ajmer.

Date of Judgment: March 19, 2007.

PRESENT

HON'BLE MR. PRAKASH TATIA,J.

Mr. Sangeet Lodha for the petitioner.

Mr. Anjay Kothari for the respondent.

REPORTABLE

BY THE COURT:

This revision petition by the revenue is preferred against the Tax

Board's order dated 19.6.2001 by which the Tax Board allowed the assessee's appeal against the order of the Deputy Commissioner(Appeals) dated 2.7.1997 and held that since the assessee is entitled to claim benefit under the Rajasthan Sales Tax Incentive Scheme 1987 and also entitled to purchase the goods on concessional rate of tax under Section 5C of the Rajasthan Sales Tax Act, 1954 and the Assessing Authority committed error of law by denying the set off of Rs.15,537/- to the assessee and also committed error of law by imposing consequential liability of payment of interest of Rs.8,390/-.

The detail facts under what circumstances the assessee claimed the set off of Rs.15,537/- are not mentioned in all the three orders, that are order passed by the Assessing Authority dated 3.7.1996, the order passed by the Deputy Commissioner (Appeals) dated 2.7.1997 as well as from the order passed by the Tax Board dated 19.6.2001, but the question of law raised by the revenue can be decided in this revision petition.

The revenue's case is that in view of clear language used in sub- clause (c) of clause 4 of the Scheme of 1987, the assessee is not entitled to claim set off of the amount of tax which has been paid by the assessee against the revenue's demand for tax. The learned counsel for the revenue also submitted that so far as the benefit of concessional rate as provided under Section 5C and 5CC of the Rajasthan Sales Tax

Act, 1954 are concerned, the assessee may be entitled to avail benefit of paying the tax on concessional rate. It is also submitted that for this, there are certain conditions which are required to be fulfilled for claiming benefit of tax on concessional rate as well as for claiming benefit under explanation.

The learned counsel for the assessee submitted that the explanation of sub-clause (c) of clause 4 itself made it clear that the assessee shall be entitled to both the benefits, one under the Scheme of 1987 that is which provides exemption from payment of tax as provided under the Scheme of 1987 and second, that the assessee's benefit under

Section 5C and 5CC of the Rajasthan Sales Tax Act, 1954 shall continue.

According to the learned counsel for the assessee, the assessee if has paid the tax beyond the concessional rate of tax which could have been levied under Section 5C of the Act of 1954 then the assessee was entitled to claim set off of the amount which the assessee has paid beyond the concessional rate as allowable by Section 5C of the Act of 1954.

I considered the contentions of the learned counsels for the parties and perused the reasons given in the orders impugned.

The Incentive Scheme as Sales Tax Incentive Scheme for

Industries, 1987 was issued by issuing Notification No.679 dated 23.5.1987. This scheme was framed by exercising powers conferred by

Section 4(2) of the Rajasthan Sales Tax Act, 1954. As per clause 4 of the

Scheme of 1987, an industrial unit is entitled to claim exemption from payment of tax on fulfilling the conditions of Scheme of 1987. The assessee is eligible to said tax exemption and this fact is not in dispute.

Dispute is about the interpretation of sub-clause (c) of clause 4 and

Explanation appended to it. Sub-clause (c) of clause 4 of Scheme of 1987 is as under:-

"4. Exemption from tax on sales .-

(a) ...... ...... .....

(b) ...... ...... .....

(c) An industrial unit claiming exemption from tax under this notification shall not be entitled to claim any deduction, draw back, set off, partial exemption or refund in respect of purchases made by it.

Explanation.- The benefit of the concessional rates provided under Ss. 5C and 5CC of the RST Act, 1954, would continue to be available to the industrial units eligible for the incentives under this notification subject to the terms and conditions contained in the aforesaid sections."

The sub-clause (c) of Clause 4 of the Scheme of 1987 denied the claim of (1) any deduction, (2) draw back, (3) set off, (4) partial exemption and (5) refund in respect of purchases made by the industrial unit who have been given benefit of tax exemption under the Scheme of 1987.

The Explanation is exception to sub-clause (c) of Clause 4 and by virtue of the explanation the industrial units who got the benefit of

Scheme of 1987 are entitled to benefit which may be available to them under Section 5C and 5CC of the RST Act 1954.

So far as question of law is concerned, this can be decided in this manner that the dealer claiming benefit under the Scheme of 1987 and who is held eligible to claim benefit and is granted benefit under the

Scheme of 1987 of tax exemption, may not claim the set off as per sub- clause (c) of clause 4 of the Scheme of 1987 if it has paid the tax in accordance with law against its liability created under the Act of 1954 but exception to it is provided under the explanation which clearly provides that the benefit for which such assessee is entitled to under

Sections 5C and 5CC of the RST Act 1954 on sale or purchase of the goods on concessional rate of tax, then that benefit will continue.

Clause 4(c) and its Explanation as well as Section 5C abd 5CC of the

Act of 1954 are absolutely clear and that there is no ambiguity. The ambiguity is because of the reason that the facts are not mentioned in the order by the Assessing Authority or by the Deputy Commissioner

(Appeals) or by the Tax Board with respect to the claim of the assessee.

It is not clear whether the assessee is claiming set off of the amount which he might have paid beyond the taxable limit as provided under

Section 5C of the Act of 1954. If the assessee has paid the amount beyond the taxable limit as provided under Section 5C under assumption that it since has been granted benefit of tax exemption of Scheme of 1987, therefore, is not entitled to claim benefit of payment of tax at concessional rate of tax under Section 5C of the Act of 1954. Then for the excess amount paid by it, the assessee could have claimed the benefit of set off despite the fact that the assessee has availed the benefit of tax exemption under the Incentive Scheme of 1987. The question of law is decided as mentioned above.

Since the facts are not given in the order and without taking note of the facts, this question cannot be decided whether claim of the assessee of set off of Rs.15,537/- was about his payment of tax beyond the taxable liability under Section 5C. In case, the said amount is beyond the taxable limit of Section 5C of the Act of 1954 then only the assessee shall be entitled to claim set off of Rs.15,537/- and in case this amount of Rs.15,537/- has been paid by the assessee on the basis of his liability, as his liability of concessional rate of tax under Section 5C, then he has not paid the tax beyond the limit as provided under Section 5C and, therefore, the assessee will not be entitled to claim any benefit.

The Tax Board, therefore, was right in holding that despite availing benefit of tax exemption under the Scheme of 1987, the assessee could have claimed the benefit of payment of tax at lower rate of tax as provided under Section 5C of the Act of 1954 but the Tax Board without examining the fact whether the assessee in fact has paid tax beyond the tax rate prescribed under Section 5C, allowed the set off of

Rs.15,537/-.The Tax Board either itself should have examined the fact in this respect or should have remanded the matter to the Assessing

Authority to inquire into the matter in the light of decision on the point of law decided by the Tax Board so that the fact, which from the orders of the Assessing Authority and the Appellate Authority is not clear and left out could have been decided.

In view of the above, the revision petition is partly allowed and the order of the Tax Board dated 19.6.2001, in relation to entitlement of benefit of set off to assessee is upheld. The matter is remanded to the Assessing Authority to record a finding about the actual liability of assessee in the light of observations made above and proceed.

( PRAKASH TATIA ),J. mlt.


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