B.C.CHAKRABARTI - (1.) ALL these cases involve substantially identical questions of law. The cases though heard in batches, one after the other, are being disposed of by this common judgment.
(2.) THE case of the applicants in RN-375 (T) of 1989 and RN-160 (T) of 1989 arise out of an application under article 226 of the Constitution of India filed before the High Court at Calcutta being Matter No. 1458 of 1988. On transfer to this Tribunal the application has been renumbered as RN-375 (T) of 1989. RN-160 (T) of 1989 also arises out of the same matter being an application for extension of an interim order passed by the High Court in the same matter. The application for extension of interim order was numbered as RN-160 (T) of 1989. The said application was disposed of vide our order dated 19th May, 1989. The case of the applicant in brief is as follows : The applicant is a partnership firm engaged in the business of manufacturing diverse types of edible and non-edible oils having its factory at 1/b, Madan Mohan Burman Street, Calcutta. The applicant No. 2 is a partner of the firm which is applicant No. 1. Being attracted and encouraged by the incentive scheme for industrial development and enjoyment of tax holiday, the applicant No. 1 drew up a scheme for manufacturing edible and non-edible oils and established a unit for the purpose. On an application for being registered as a small-scale industrial unit ("s. S. I. " in short), the Director of Cottage and Small-scale industries initially granted provisional registration on 11th August, 1982, which was renewed from time to time until permanent registration was granted in 1983. The partners of applicant No. 1 also applied for certificate of registration under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter called "the BFST Act") and the Central Sales Tax Act, 1956 (hereinafter called "the CST Act") in April, 1983 and the applicant was granted registration certificates accordingly. In April, 1983, the applicant applied before the Assistant Commissioner of Commercial Taxes, North Circle, for issuance of eligibility certificate claiming exemption from payment of tax under rule 3 (66) of the Rules under the BFST Act. The eligibility certificate was granted and renewed from time to time, the last such renewal being valid till 31st September, 1987. In setting up the factory the applicant placed total reliance upon the statutory provisions of sections 5 and 6b of the BFST Act as well as rule 3 (66) of the Rules framed thereunder. The applicants were all along given to understand that they would be entitled to enjoy tax holiday in respect of sales tax and turnover tax for a period of five years. Under the aforesaid sections and rules, goods generally exempt under section 5 (2) (a) (vi) are not to be included in calculating the taxable turnover. The applicants being a newly set up S. S. I. unit, the turnover of the applicants will not qualify for being included in calculating the taxable turnover for the purpose of levy of turnover tax under section 6b of the BFST Act. By an amendment effected in 1987 by the West Bengal Taxation Laws (Amendment) Act, 1987, clause (e) of sub-section (2) of section 6b has been omitted with retrospective effect. The State Government having once held out an assurance that the applicants would be entitled to enjoy tax holiday for a period of five years, cannot now go back on their assurance by deleting clause (e) of sub-section (2) of section 6b of the BFST Act to the prejudice of the applicants who had acted bona fide on the assurance held out to them. The applicants have complied with all the conditions and requirements of rule 3 (66), and as such, are entitled to the benefit of tax holiday both as regards to sales tax and turnover tax. By way of abundant caution and without prejudice to their rights and contentions the applicants, however, deposited a sum of Rs. 3,58,777. 47 on account of turnover tax for a period up to 15th February, 1988, particulars whereof are appended in a schedule annexed to the petition (annexure E ). In the facts and circumstances of the case, the action of the respondents requiring the applicants to pay turnover tax is arbitrary and violative of article 14 of the Constitution of India.
(3.) BY filing the writ application the applicants have challenged the amendment whereby clause (e) of section 6b (2) was omitted. They have prayed for a direction in the nature of a mandamus commanding the respondents to refund the sum of Rs. 3,58,777. 47 which was paid by the applicants without prejudice to their rights and contentions.;