- (1.) ON consent of the parties the main application is taken up for disposal. In brief, the case of the applicant is that it was granted eligibility certificate under rule 3 (66) of the Bengal Sales Tax Rules, 1941, as a small-scale unit for the period from 9th November, 1981, to 8th November, 1982. It had applied on 11th May, 1983, for renewal of the certificate for further one year. The Assistant Commissioner, Chowringhee Circle, by an order dated 3rd December, 1983, held that the applicant had exceeded the investment on plant and machinery. In coming to such a decision the Assistant Commissioner had taken into account the cost of electrical installation and the cost of generator as a part of investment on plant and machinery.
(2.) THUS the application for renewal of eligibility certificate for the period from 9th November, 1982, to 8th November, 1983, was rejected. The applicant preferred a revision before the Additional Commissioner, Commercial Taxes who by an order dated 20th May, 1989, held that the limit of investment on plant and machinery had been exceeded and he upheld the order of the Assistant Commissioner by rejecting the prayer for renewal. The applicant has urged that the cost of generator and the cost of electrical installation should be excluded from the limit of investment on plant and machinery for the purpose of granting eligibility certificate under rule 3 (66) of the Bengal Sales Tax Rules, 1941. According to the applicant, calculation of investment on plant and machinery should be in that manner, following the guidelines of the Government of India in the same respect. We have heard learned advocate for the applicant and the learned State Representative. In a recent judgment of ours in the case of Sima Banerjee [1990] 76 STC 241, we have held that cost of generator should be excluded from the calculation of investment on plant and machinery. In the case of Nayek Associates reported in [1985] 59 STC 295 (Cal); (1983) 16 STA 277 (Cal), it was held by G. N. Ray, J. , that cost of installation should be excluded from the investment on plant and machinery for the purpose of granting eligibility certificate. Accordingly, the authorities were in error in including the cost of generator and electrical installation in the investment on plat and machinery while considering the applicant's prayer for renewal of eligibility certificate for the period of one year from 9th November, 1982. Learned State Representative, however, submits that the Assistant Commissioner of Commercial Taxes will be required to see whether other conditions laid down in rule 3 (66) have been complied with in this case. Accordingly, the main application is disposed of in the following terms :
(3.) THE order dated 3rd December, 1983, passed by the Assistant Commissioner, Chowringhee Circle, rejecting the prayer of the applicant for renewal of eligibility certificate for the period from 9th November, 1982, to 8th November, 1983, and the order dated 20th May, 1989, passed by the Additional Commissioner, Commercial Taxes confirming the aforesaid order of the Assistant Commissioner are hereby set aside. The matter is sent back on remand to the Assistant Commissioner, Chowringhee Circle, for fresh disposal of the applicant's petition for renewal of eligibility certificate for the period from 9th November, 1982, to 8th November, 1983, in accordance with the observations made in this order, by excluding the cost of generator and electrical installation from the investment on plant and machinery. The Assistant Commissioner shall dispose of the said application within 3 months after giving the applicant a reasonable opportunity of being heard. Thus the main application and the application for interim order are dispose of.;