TaxTMI 
TaxTMI 
2019 (3) TMI 198
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.... of Electronics and Information Technology (the respondent). Further, the petitioner prays that this Court issue directions to the respondent to disburse the subsidy amounting to Rs. 269,70,00,000/- to the petitioner. 3. The petitioner is a company registered under the Companies Act, 1956 and is, inter alia, involved in the manufacture of Solar PV Cells and Modules. It is also engaged in the engineering, procurement and construction of solar power plants. The petitioner submits that it is entitled to subsidy under "The Special Incentive Package Scheme to Encourage Investments for Setting up Semiconductor Fabrication and other Micro and Nano Technology Manufacture Industries" (hereafter 'the Scheme'), announced by the respondent vide a ga....
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....herein to disburse the subsidy. However, the NCLT dismissed the application observing that the relief as prayed for is beyond its jurisdiction. 8. Thereafter, the petitioner preferred a writ petition before this court captioned Moser Baer Solar Limited v. Ministry of Electronics and Information Technology: W.P. (C) 10696 of 2018, which was disposed of by this court on 21.01.2019, directing the respondents to communicate its decision regarding the issue of subsidy to the petitioner within a period of one week. In compliance with this order, the respondent issued the impugned letter rejecting the petitioner's claim for subsidy. 9. Aggrieved by the same, the petitioner has filed the present petition. 10. The learned counsel appearing ....
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....itors had reported that relevant details for the capital expenditure amounting to Rs. 96.95 crores were not available. It was also reported that long term liability towards financial lease was outstanding and had remained outstanding since over ten years. In this view, the respondents concluded that the petitioner had not made the capital investment that was necessary to cross the threshold of Rs. 1000 crores. 12. The second reason for not disbursing the subsidy as indicated in the impugned letter is that the petitioner is facing acute shortage of liquidity funds and, therefore, the subsidy if disbursed would be used for payment of lenders. The respondent has reasoned that object of providing any incentive was to assist viable units and ....
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....eshold NPV of investment in manufacture of other eco-system products will be Rs. 1,000 crore and above. This threshold value shall be taken as the Net Present Value (NPV) of investments made during the first 10 years of the project life and the discount rate will be @ 9%. 3.1 The Central Government or any of its agencies shall provide incentive of 20% of the capital expenditure (as defined in sub-paragraph 3.3) during the first 10 years for the units in SEZ and 25% of the capital expenditure for non-SEZ units. Non-SEZ units shall be exempt from CVD. The incentives, if any, offered by the State Government or any of its agencies or local bodies shall be over and above this amount. Note: The customs notification exempting CVD for non-SEZ....
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....able to be paid over a period of 20 years. In view of this submission, this Court had pointedly asked the learned counsel for the petitioner whether there was any default on the part of the petitioner in payment of the lease rentals. He could not respond in the negative. The impugned order indicates that the lease rentals of Rs. 350.70 crores and Rs. 35.22 crores were outstanding since more than ten years. Since there appears to be no dispute that the petitioner had defaulted in payment of liabilities towards lease rentals related to the assets, which are capitalized as investment, the decision that the petitioner has not made the requisite investment cannot be faulted. 18. It is also not disputed that the auditors appointed had submi....
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....ere is no material to indicate that the subsidy would be used for capital investment as originally envisaged that the same would result in the petitioner meeting the criteria of capital investment (NPV of Rs. 1000 crores). 20. The decision of the respondents to refuse disbursement of subsidy on the ground that the petitioner's viability in question also cannot be faulted. Plainly, the object of the Scheme was to support eligible projects. In the given set of facts where the viability of the petitioner's project is itself under serious question, the respondent cannot be expected to disburse any subsidy - which was envisioned for long term benefits. The opening paragraph of the Scheme indicated that the same was in expectation of return by....