2007 (2) TMI 310

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....cheme ") and "Sales Tax New Incentive Scheme for Industries, 1989" (for short, "1989 Scheme"). In terms of 1987 Scheme exemption from payment of sales tax of 100 per cent was provided. 1989 Scheme which was notified in the official gazette on or about July 6, 1989 was given retrospective operation with effect from March 5, 1987. It was to remain in force up to March 31, 1998. Sub -clause (b) of clause (1) of 1989 Scheme reads as under: "(b) An industrial unit, other than the new industrial unit covered by 1985 dispensation, being covered by the Sales Tax Incentive Scheme for Industries, 1987 (hereinafter referred to as the Old Incentive Scheme) shall have an alternative option to seek the benefits under the New Incentive Scheme." Clau....

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.... its total production." Appellant herein was eligible to obtain the benefits of the said Industrial Policy both under 1987 and 1989 Schemes. It, however, opted for 1989 Scheme, wherefor an application for grant of sanction of eligibility certificate was filed before the Manager, District Industries Centre, Rajsamand on April 1, 1995. Indisputably, the eligibility certificate was to be granted by the Industries Department of the State. The said certificate was granted on December 7, 1996, pursuant whereto exemption from tax liability was limited to 75 per cent. Contending, however, that it had altered its position on a representation made by the State that 1987 Scheme would be applicable in its case, the appellant alleged that it had n....

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....; : ...   Total 66.49 Reliance has also been placed on the order of assessment passed by the assessing authority of the Commercial Taxes Department, wherein also exemption had been stated to have been granted in terms of 1987 Scheme, a sample copy whereof reads as under: "5. Sale under Incentive Scheme From May 6, 1995 to May 5, 2003 under the Incentive Scheme, 1987 the assessee has already been allowed a heavy tax exemption of Rs. 3,11,250. Eligibility certificate No. 1/354 has been issued to the assessee. Under the Incentive Scheme, 1987 the assessee has made a sale of marbles slab of Rs. 5,42,063. On this sales tax at 16 per cent of Rs. 86,730 is being imposed and being deducted from eligible amounts received under the ....

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....e said sanction did not amount to a grant of a certificate. The eligibility certificate, as indicated hereinbefore, was granted only on December 7, 1996, in terms whereof clearly 1989 Scheme was applied. It was so explicitly stated in the eligibility certificate also. It may be true that the assessing authority committed a mistake in referring to the 1987 Scheme in its order of assessment, but thereby the appellant cannot be permitted to derive any benefit to which it was not entitled under the law. Appellant indisputably was eligible for grant of exemption in terms of both the Schemes. It had opted for the latter Scheme. While doing so, it must have taken into consideration the benefits under both the Schemes separately. Having opted for t....

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....o do with the grant of eligibility certificate. If the assessing authority committed a mistake in referring to 1987 Scheme and allowed 100 per cent exemption in terms thereof, the State cannot suffer thereby. The statutory authorities are entitled to rectify their mistake. When such mistakes are apparent on the face of the records even no opportunity of hearing is necessary. (See Maharashtra State Seeds Corporation Ltd. v. Hariprasad Drupadrao Jhadao [2006] 3 SCC 690.) Appellant having opted for grant exemption under 1989 Scheme, the respondent was bound to accept the same and, thus, it had not committed any illegality in doing so. In that view of the matter, in our considered view, the appellant is estopped and precluded from raising a ....

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....r the 1989 Scheme. However, despite such knowledge if it had not recovered any tax, it must thank itself therefor. Furthermore, the question as to whether the appellant did show it bona fide or not is a question of fact. Such a contention can be raised only in an appropriate proceeding and not before us for the first time. Reliance placed on Shree Cement Ltd. v. State of Rajasthan [2000] 1 SCC 765 is misplaced. Therein, again dicta in Indian Cement [1988] 1 SCC 743 and Shree Digvijay Cement Co. Ltd. v. State of Rajasthan [2000] 1 SCC 688 were followed. In this case, there is no direction to the respondent-State to recover the difference in tax. In State of Rajasthan v. J. K. Udaipur Udyog Ltd. [2004] 7 SCC 673, whereupon again strong ....