TaxTMI 
TaxTMI 
2010 (3) TMI 998
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....ase of raw materials like diesel and raw cotton for manufacture of surgical cotton by him as per clause 4(c) of the Rajasthan Sales Tax Incentive Scheme, 1989 notwithstanding clause 4(c) of the said scheme. The learned counsel for the Revenue, Mr. Mathur urged that: (i) Clause 4(c) of the Incentive Scheme under which the assessee is exempted from payment of tax on the basis of eligibility certificate granted to it under the said scheme of 1989 on the basis of investment made by it for manufacturing goods within the State of Rajasthan cannot be given any set-off of such excess tax in view of the specific prohibition in clause 4(c) of the Incentive Scheme which reads as under: "4(c) An industrial unit claiming exemption from tax under this....
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....et-off notwithstanding the fact that the assessing authority has passed such remand order giving benefit of such set-off, subject to final decision of this court in the present revision petitions, the present revision petitions cannot be said to have become infructuous. For this he relied upon the decision of the Allahabad High Court in U.P. Brick Field Mavi Kalan v. Commissioner, Sales Tax [1998] 4 AWC 513 and the decision of the honourable Supreme Court in the case of Shiromani Gurdwara Parbandhak Committee, Amritsar v. Raja Shiv Rattan Dev Singh AIR 1955 SC 576, para 13. On the other hand, Mr. J.L. Purohit, learned counsel for the respondentassessee, heavily relied upon the decision of this court in case of Nitin Spinners (S.B. Civil Sa....
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....datory condition of section 5C/5CC of the Act for not furnishing the declaration form ST17 but the sole ground is because of availing of the benefit under the Incentive Scheme, 1989. He, therefore, contended that the benefit already given to the respondentassessee by the appellate authorities below and even in the remand order passed in pursuance thereof does not deserve to be taken back at this stage. I have heard learned counsel at length and perused the relevant provisions and the judgments cited at the Bar. In the opinion of this court, the matter stands concluded in favour of the respondent-assessee by a co-ordinate Bench by this court in the case of Nitin Spinners (S.B. Civil Sales Tax Revision No. 768 of 2002, decided on March 19, ....
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.... 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 of the benefit of tax exemption under the Incentive Scheme of 1987. The question of law is decided as mentioned above." It is true that clause 4(c) in specific terms denies the benefit of deduction, drawback, set-off, partial exemption or refund in respect of purchases made by it but one cannot ignore the specific exception made by the Legislature itself in second part of definition in clause 4(c) which says: "but different concessions in any form available under any section of the Act sha....
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....r the Incentive Scheme under eligibility certificate granted to it continues however no set-off can be allowed, renders such entitlement of the assessee itself nugatory. Once the entitlement of the assessee to avail of concessional rate is not in dispute, the only way to allow him to avail of such concession logically and properly is to allow him the set-off of such excess tax suffered by him on the purchase of such raw material. This is what was decided by this court in case of Nitin Spinners (S.B. Civil Sales Tax Revision No. 768 of 2002, decided on March 19, 2007) when the court said, "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 of the benefi....