TaxTMI 
TaxTMI 
1990 (8) TMI 354
X X X X Extracts X X X X
X X X X Extracts X X X X
....d T bearing Nos. 3010206/78-79 issued by the second respondent dated 3rd November, 1978, 31504838/78-79 and assessment No. 31504838/79 issued by the third respondent dated 20th August, 1979 and 20th January, 1980, respectively declaring that the demands made therein are illegal, opposed to law and ultra vires of the powers of third respondent; (b) a writ in the nature of mandamus or such other writ order or direction as this Honourable Court deems fit directing respondents 1 to 3 to grant to the petitioner the concession for adjustment of the sales tax payable on the raw materials purchased by it as applied for by the petitioner under exhibits F, H and J and to continue to grant the same for the period to which it is entitled to on the basis of the Government Orders, exhibits A and B. 2.. Before we proceed further to dispose of the petition, we must notice that the matter has come before the Division Bench on account of the direction issued some time in 1987 by a learned single Judge in view of the decision rendered in Writ Petition No. 939 of 1980 which followed the decision in Writ Petition No. 373 of 1977. We have not been able to find any specific reference order in terms....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... extreme stand that the petitioner was not entitled to the benefits of the 1969 notification as at exhibit A because the petitionercompany was only a successor-in-interest to an earlier company called "Malbar Chemical Fertilizers" incorporated as early as 1964 having its registered office at New Delhi and therefore merely because it commenced its activity in 1976, it would not be eligible to the benefits or incentives under order as at exhibit A. 6.. In the reply filed to the statement of objections, the company has clarified as to how a new company was formed in 1971 pursuing the object for which the earlier company had been incorporated and new capital structure was provided for and raised and it was only in or about 1973 after obtaining the loan, the factory was erected partly on account of the incentives offered by the 1969 notification of the State Government as at exhibit A and therefore, the company was and is entitled to the benefits or incentives offered for a period of 5 years which according to the company would have ended in the year 1980-81. We must not at this stage fail to notice that a further notification came to be issued by the respondent-State of Karnataka in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 though permission was applied for, the same was not granted and exhibit R, the letter demanding the payment of tax was issued. Therefore, we have no doubt in our mind, ordinarily the petitioner would have the benefit of the judgment which clearly stated that benefit could not be denied merely on the ground that some units were abusing it. That is the ratio of the judgment of the Supreme Court in Dharmendra's case [1988] 70 STC 59. 7.. It was however argued by Sri Kumar, appearing for M/s. King and Partridge that whatever was extended to the other units should also be extended to petitioner's unit. It had been clarified, the incentives, particularly in view of the observations of the learned single Judge in para 15 of Dharmendra's case as reported in ILR (1979) 2 Kar 1909 at page 1928, would continue in favour of all eligible units. The passage relied upon reads as follows: "In the result, I declare and direct by issue of a writ in the nature of mandamus to the respondents in each of the writ petition, as under: (i) that Order Nos. CI 58 FMI 69 and FD 396 CSL 74 dated 30th June, 1969 and 11th August, 1975, respectively, and any other order made thereto by the Government o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yet another fact which persuades us to deny the relief prayed for by the petitioner and that is the notification as at annexure G dated 12th January, 1977, in clauses (iv) and (v) specifically excluded the incentive offered to new industrial units if the units had an investment of fixed asset in excess of Rs. 10 lakhs. That was not a question considered in Dharmendra's case [1988] 70 STC 59 (SC) and ILR (1979) 2 Kar 1909, either by this Court or the Supreme Court as it was never pleaded nor argued. Clauses 4 and 5 read as follows: "(iv) Industrial units with an investment on fixed assets of Rs. 10 lakhs and above and who are entitled to a development loan under the Government order dated 4th April, 1975, will not be entitled to the concession of refund of sales tax on raw materials. (v) This scheme will continue to be implemented by the Commissioner of Commercial Taxes based on a certificate issued by the Directorate of Industries and Commerce as regards the value of fixed assets." Mr. Kumar did not dispute that the assets of the petitioner-company run to crores of rupees and therefore is far in excess of the amount specified in clause (iv) of the order as at exhibit G. Un....