TaxTMI 
TaxTMI 
2019 (8) TMI 1502
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.... a cut-off date on 31.12.1999 and further new conditions have been introduced with retrospective effect w.e.f. 31.12.1999. 02. The petitioner has also prayed for issuance of an appropriate writ, order or direction directing the respondents to extend the facilities of tax exemption as per notification dated 14.09.1998, which stood prior to amendment brought in by the amending notification dated 09.06.2000. A prayer has been made for quashment of impugned order dated 22.02.2005 (Annexure-P/20), by which, the application for grant of exemption has been rejected. 03. The facts of the case reveal that the petitioner was having an existing unit at Plot No.111, Sector - 1, Pithampur, District - Dhar and the petitioner, on account of the exemption facility and the notification issued by the State Government, established 230 KVA Wind Electric Generator Unit at Village - Anantpur, District - Dhar. 04. The facts of the case further reveal that the State of Madhya Pradesh, exercising the powers conferred by the M.P. Gejneal Sales Tax Act, 1958 (No.2 of 1959) and Sub- section (5) of Section 8 of the Central Sales Tax Act, 1955 by notification No.A-3-32-94-ST-V(69) dated 14.09.1998, has....
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....with retrospective effect. The petitioner's grievance is that the petitioner has established a Generating Unit on account of earlier notification dated 14.09.1998 issued by the State Government and the benefit for which, the petitioner is entitled, cannot be withdrawn by issuing subsequent notification dated 09.06.2000, as has been done in the present case. 09. Heavy reliance has been placed upon a judgment delivered by Division Bench of this Court in the case of M/s Malwa Vanaspati & Chemical Company Limited v/s State Level Committee & Others reported in 2017 (30) STJ 525 and a prayer has been made for quashment of the aforesaid notification. 10. The respondents have filed a reply in the matter and they have stated that the State Government in exercise of powers conferred under Section 17 of the M.P. Commercial Tax Act, 1994 has issued a notification dated 14.09.1998 and has granted exemption on fulfillment of certain terms and conditions mentioned in the notification and the notification issued on 14.09.1998 was amended by amending notification dated 09.06.2000. 11. The respondents have further stated that they do have the power to amend the notification with retrosp....
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....ication. Hence, the petitioner has established one 230 KVA wind electric generator at Village - Anantpur Gungaria in District - Dhar (M.P.). the petitioner had its existing unit at Plot No.111 Sector - 1, Pithampur, hence undertook setting up power generator to avail benefit for its unit. 01.12.1999 & 09.12.1999 Placed firm order (after inviting offer) with M/s Enercon (India) Limited, Mumbai for construction, supply, errection, commissioning and operating one 230 KV wind mill on turnkey basis which also included civil work (marked as Annexure-P/3 and P/4 to the petition). 23.12.1999 & 11.01.2000 Agreement for purchase of two pieces of land (1.96 hectare) in Village - Anantpur, Dungaria. Paid entire consideration to seller and took possession of land. Sale deed in respect of first piece executed in favour of the petitioner on 26.06.2000. Sale deed in respect of second piece executed on 11.01.2000 itself (marked as Annexures-P/10, P/11 and P/12 to the petition). 26.12.1999 Made application to M.P. Urja Vikas Nigam for approval of the project paid necessary charges by DD. (Copy of application marked as Annexure-P/5 to the petition) 04/01/00 The petitioner agai....
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....nergy on or before 31st of December 1999 or having taken the following effective steps on or before 31.12.1999 or generates energy or after the said date but on or before 31.12.2001 ? (a) has obtained allotment / possession of land for the establishment ? (b) has applied for finances from a regular financial institute ? (iv) Is a consumer industry unit who commences consumption of electrical energy generated by eligible unit on or before 31.12.2001 ? 14.12.2004 Petitioner's application for the exemption from payment of the tax was rejected by the State Level Committee it its meeting held on 14.12.2004 and the order of rejection was communicated to the petitioner vide letter dated 22.02.2005 (Annexure-P/16). Rejection is thus on the ground that the petitioner has not obtained any loan from any financial institution before 31.12.1999 i.e. on the basis of new condition & cut- off dated introduced by amending notification dated 09.06.2000 with retrospective effect, without considering the fact that petition had already commenced production in the WEG before issuance of the notification and its application for eligibility was pending prior to issuance of ....
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.... conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect." 35- A Division Bench of this Court in the case of Ambika Refinery Vs. State of M. P. & Others reported in (2012) 20 STJ 563 in paragraphs No.10 and 12 has held as under:- "10. The contention of the petitioner is that when the State Government had granted exemption to the petitioner under Section 10 of Entry Tax Act till 31 st of March,2007 then such exemption could not have been restricted vide another Notification dated 12th of April,2007 till 31st of March,2004, that too with retrospective effect. Reliance is placed by the petitioner to a judgment of Apex Court in State of U.P. & Ors. Vs. Deepak Fertilizers & Petrochemical Corporation Ltd. AIR 2007 SC 2123 and submitted that such notification may be quashed. 12. The position of the present case is similar. The exemption which was granted vide earlier notifications was avail....
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.... notification under Section 8(5) could not be withdrawn retrospectively. 3. Having heard learned counsel for the parties, we are of the opinion that in view of the decision of this Court in case of Vijay Dal Mill (supra) and the specific language of Section 12(2) itself, the impugned notification dated 07/01/1981, in so far as it cancels the earlier notification dated 07/04/1967 with effect from 01/10/1978, deserves to be quashed. Of course, cancellation of the notification dated 07/04/1967 by the impugned notification with effect from the date the impugned notification dated 07/01/1981 shall be valid inasmuch as it is settled law that an exemption as aforesaid in the nature of concession can be withdrawn at the instance of the authority granting the exemption." 37- Division Bench of this Court in the case of Sayaji Hotels Ltd. Vs. State of M. P. & Others reported in (2015) 26 STJ 464 in paragraphs No.14, 15, 21, 22 and 23 has held as under:- "14. The apex court in the case of Mahabir Vegetable Oils Pvt. Ltd. v. State of Haryana reported a [2006] 145 STC 350 (SC); [2006] 8 STJ 689 (SC) had held that there lies a distinction between vested rights and accru....
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....or arises by necessary and distinct implication. 22. The honourable Supreme Court held that a subordinate legislation can be given a retrospective effect, if any power is contained in this behalf in the main Act. Rule-making power is a species of delegated legislation. A delegatee therefor can make rules only within the four- corners thereof. No statute can be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act-by a delegated legislation the right accrued to the petitioner cannot be taken away. Thus, the Supreme Court held that the amendments carried out could not take away the rights of the petitioner with the retrospective effect. In the case in hand, the exemption, which was granted already earlier notification was available to the petitioner up to November 4, 2006, but vide notification dated September 15, 2006, it was restricted up to March 31, 2006, meaning thereby, for a period of near about six months, the petitioner has been liable for payment of tax for which there was no power with the State Government to withdraw such exemption with retrospective effect. The aforesaid exemption could not have been with....