RANISATI CEMENT WORKS P. LTD. Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAX, SPECIAL CELL, KOLKATA AND OTHERS

JUDGEMENT

(1.) IN this application under section 8of the West Bengal Taxation Tribunal Act, 1987 the issues which are called for our consideration are : (i) Whether the order passed on August 17, 2006 by the Assistant Commissioner of Commercial Taxes, Special Cell in EC -140/2000 -01 rejecting the applicant's application in form 78 for the grant of eligibility certificate for tax holiday under section 116(1)(b) of the West Bengal Value Added Tax Act, 2003 is void; (ii) Whether law of limitation has application in the application challenging the void order; (iii) Whether the order passed on March 26, 2010, by the Deputy Commissioner of Commercial Taxes, Special Cell rejecting the application for revision of the order dated August 17, 2006 for being barred by limitation is erroneous. Admittedly, (i) the applicant was the holder of EC No. 30/ML/2001 -02/SC for seven years from June 22, 2000 to June 21, 2007 issued by the Assistant Commissioner of Commercial Taxes, Special Cell, under section 39 of the West Bengal Sales Tax Act, 1994; (ii) with the enactment of the West Bengal Value Added Tax Act, 2003 with effect from April 1, 2005 the applicant applied for extension of the EC as per the provision of section 118(b) of the West Bengal -Value Added Tax Act, 2003 read with rules 188 and 192(3) of the West Bengal Value Added Tax Rules, 2005, and (iii) rejection of the said application under order dated August 17, 2006 with observation that the applicant was not entitled to the EC ab initio on the grounds of violation of the terms and conditions laid down in the Explanation (i) of the West Bengal Value Added Tax Rules, 2005 for the reasons (a) value of generator set was not included in the value of plant and machinery; (b) there was no mould in the plant and machinery as mould is not required for production of cement; (c) the applicant invested a further amount of Rs. 9,50,000 in the plant and machinery excluding the value of generator set making total value of plant and machinery as on August 3, 2001 to Rs. 44,90,000 excluding value of generator set; (iv) hereinbefore the applicant filed an application under section 8 of the West Bengal Taxation Tribunal Act, 1987 in this Tribunal challenging rejection of his eligibility certificate ab initio vide order dated January 17, 2007 passed by the Deputy Commissioner of Commercial Cell as well as the impugned order dated August 17, 2006 passed by the ACCT, Special Cell, rejecting his application in form 78. The said application was registered as RN -247 of 2008 and was disposed of with the judgment delivered on June 19, 2009 by setting aside the order dated January 17, 2007 for the reasons that rejection of the eligibility certificate with retrospective effect was not sustainable but keeping the order dated August 17, 2006 open for the reason that this order had not been challenged before any higher authority and no reasons for the delay were assigned.

(2.) Thereafter the applicant filed the revisional application under section 86 of the West Bengal Value Added Tax Act before the Joint Commissioner of Commercial Tax for setting aside the aforesaid order dated August 17, 2006 on the ground that the said order was void because the Assistant Commissioner travelled beyond his jurisdiction as contemplated in rule 192(3) of the West Bengal Value Added Tax Rules, 2005 in passing the said order. There was unexplained delay in filing the said revisional application. In spite of giving opportunity, the applicant did not opt to file application for condonation of delay. The revisional authority under order dated March 26, 2010 rejected the said revisional application for being barred by limitation. On being aggrieved with this, order of rejection the applicant, filed this application with assertion that the order challenged in the revisional application having been void, this could not be refused on the ground of delay. In this application he asserted that he explained the delay in written submission before the revisional authority.

(3.) THE respondent contested this application by supporting the impugned order though he did not file the A.O. The applicant's contention is that for consideration of the application in form 78 of the West Bengal Value Added Tax Act for exemption of tax as provided in section 116(1) (b) of the West Bengal Value Added Tax Act read with section 118(1)(b) of the said Act, the ACCT had to be satisfied only on the point whether the dealer furnished correctly all information. He travelled beyond this and hence the order became without jurisdiction which resulted it void. We accept the view that if the order is passed without jurisdiction it is void. The sub -rule (3) of rule 192 of the West Bengal Value Added Tax Rules, 2005 provides, "if the Senior Joint Commissioner or the Joint Commissioner or the Deputy Commissioner, as the case may be, is satisfied that a registered dealer has furnished correctly all information in the application referred to in sub -rule (1), and that such dealer has complied with the requirements of the provisions of the Act and the Rules for the purpose of clause (b) of subsection (1) of section 116, and such registered dealer is eligible to enjoy the tax holiday under clause (b) of sub -section (1) of section 118, the Senior Joint Commissioner or Joint Commissioner or the Deputy Commissioner, as the case may be, shall grant a certificate of eligibility in form No. 79 to such dealer for the available eligible period as applicable to him under clause (b) of sub -section (1) of section 118 from the appointed day for sale of the goods manufactured in his newly set up small -scale industrial unit". So under the rule the authority concerned had to be satisfied that (1) the dealer complied with the requirement of the provision of the Act and Rules and was eligible to enjoy the tax holiday. Section 116(1)(b) provides, "notwithstanding anything contained in sub -section (2) of section 32, or subsection (2) of section 45, or clause (b) of sub -section (4) of section 46 but subject to sub -section (2) of this section and section 118, the Commissioner may, in the prescribed manner and subject to such restrictions and conditions, as may be prescribed, permit the output tax payable under this Act by a registered dealer or a class or classes of dealers as may be prescribed, according to his returns referred to in sub -section (1) of section 32 or the tax payable by him according to a notice issued under sub -section (2) of section 45, or clause (b) of sub -section (4) of section 46, to be exempt in the prescribed manner and under such restrictions and conditions as may be prescribed where such registered dealer is entitled to continue to enjoy such exemption under clause (b) of sub -section (1) of section 118, Section 118(1)(b) of the West Bengal Value Added Tax Act, 2003 provides, "notwithstanding anything contained elsewhere in this Act where a registered dealer was enjoying benefit of tax holiday under section. 39 of the West Bengal Sales Tax Act, 1994, for a specified period, immediately before the appointed day and who would have continued to be so eligible on such appointed day under that Act had this Act not come into force, may be allowed such tax holiday by way of exemption of output tax payable by him under this Act by the Commissioner for the balance unexpired period or until the aggregate of the benefit of exemption from payment of tax enjoyed by such dealer under section 39 of the West Bengal Sales Tax Act, 1994, computed from first day of April, 2003, exceeds the limit of two hundred per centum of gross value of the fixed capital assets, whichever expires earlier, in such manner and subject to such terms and conditions as may be prescribed". So the precondition for extension of the period of the eligibility certificate under the provision of section 116(1)(b) read with section 118(1) (b) of the Act is that the dealer had to be eligible on the appointed day of the West Bengal Value Added Tax Act, 2003, i.e., on April 1, 2005 in accordance with the provision of the West Bengal Sales Tax Act, 1994. Explanation (i) to rule 98 of the West Bengal Sales Tax Rules, 1995 provides, "for the purpose of this rule, rule 99 and rule 100, the expression 'newly set up small -scale industrial unit' shall mean an industrial unit (i) in which the amount of investment on plant and machinery including the value of those obtained on hire, lease, rent or loan, but excluding the value of land, building and the cost of generator and moulds does not exceed thirty -five lakh rupees". Therefore the ACCT had jurisdiction to find the value of the plant and machinery standing on April 1, 2005. He found the value of the plant and machinery excluding generator set and mould stood at Rs. 44,99,000, i.e., beyond 35 lakhs as on August 3, 2001. This finding may or may not be correct but it cannot be said that the ACCT exceeded his jurisdiction for making enquiry as to the violation of the plant and machinery and as such the contention of the learned advocate Mr. Mukherjee cannot be accepted and we find that the order dated August 17, 2006 was not void as regards its finding on the valuation of the plant and machinery standing on April 1, 2005 but as generator set and mould are excluded from computation of the limit of the value of the plant and machinery, the said order dated August 17, 2006 was void in relation to its observation as, regards generator set and mould.