- (1.) These revision petitions have been filed by the revenue against the order of the Tax Board dated 15.5.2002 whereby upholding the order of the learned Dy. Commissioner (Appeals), the learned Tax Board dismissed the appeals of the Revenue and held in favour of the respondent-assessee that for the relevant assessment years 1994-95, 1995-96 and 1996-97, the assessee was entitled to claim set off of excess tax paid by him on purchase of raw materials like diesel and raw cotton for manufacture of surgical cotton by him as per clause 4(C) of the Rajasthan Sales Tax Incentive Scheme, 1989 notwithstanding clause 4(C) of the said Scheme.
(2.) Learned counsel for the Revenue, Mr. Mathur urged that :- (i) Clause 4(C) of the Incentive Scheme under which the assessee is exempted from payment of Tax on the basis of eligibility certificate granted to it under the said scheme of 1989 on the basis of investment made by it for manufacturing goods within the State of Rajasthan cannot be given any set off of such excess tax in view of the specific prohibition in clause 4(C) of the Incentive Scheme which reads as under:- "4(c) An industrial unit claiming exemption from tax under this notification shall not be entitled to claim any deduction, draw back, set off, partial exemption or refund in respect of purchases made by it, but different concessions in any form available under any section of the Act shall not be denied to such unit." (ii) He further submitted that the judgment of this Court in the case of CTO, Bhilwara Vs. M/s Nitin Spinners Ltd., Bhilwara (S.B. Civil Sales Tax Revision No.768/2002) decided on March 19, 2007 in favour of the assessee in similar circumstances, does not lay down correct law and in view of the provisions of clause 4(C) of the Incentive Scheme, 1989 where akin provisions in clause 4(C) with its explanation in the Incentive Scheme of 1987 were discussed by the Court in the case of M/s Nitin Spinners (supra) and the two parts of the provisions have to be read as two separate provisions. In other words, he submitted that the right to avail concession under different provisions of the Act is not denied notwithstanding the fact the assessee is availing the benefit of Incentive Scheme but under no circumstances that right of availing concessional rate can lead to grant of set off of such excess tax paid on the purchase of materials in view of the specific prohibition in the first part of clause 4(C). (iii) He also urged that in pursuance of the order of the Tax Board which remanded the case back to the assessing authority for giving such benefit of set off notwithstanding the fact that the assessing authority has passed such remand order giving benefit of such set off, subject to final decision of this Court in the present revision petitions, the present revision petitions cannot be said to have become infructuous. For this he relied upon the decision of Allahabad High Court in U.P. Brick Field Mavi Kalan Vs. Commissioner, Sales Tax, 1998 4 AWC 513 and decision of Hon'ble Supreme Court in case of Shiromani Gurdwara Parbandhak Committee, Amritsar & Ors. Vs. Raja Shiv Rattan Dev Sigh & Ors., 1955 AIR(SC) 576 para 13.
(3.) On the other hand, Mr. J.L. Purohit, learned counsel for the respondent-assessee heavily relied upon the decision of this Court in case of M/s Nitin Spinners (supra) and he submitted that since the right of respondent assessee to avail the benefit of concessional rate in respect of purchases made by it of raw materials like diesel and raw cotton under Section 5(C) and 5(CC) of the Act cannot be denied admittedly in view of exception part of clause 4(C) of the Incentive Scheme or Explanation in the earlier scheme of 1987 discussed in the case of M/s Nitin Spinners (supra), the revenue is bound to give set off to the extent of such excess tax suffered by the respondent assessee on the purchase of such raw materials in excess of concessional rate applicable to him under Section 5 (C) and 5(CC) of the Act and to this extent the set off has to be given to the respondentassessee and he submitted that this controversy has been settled by this Court in the case of M/s Nitin Spinners (supra). He further submitted that the revenue is denying the benefit of set off and contending to deny the set off in the present case to the respondent assessee only on the ground of prohibition contained in first part of clause 4(C) of the Incentive Scheme, 1989 by ignoring the second part or the exception part of clause 4(C) of the Incentive Scheme reproduced above. The Revenue has not denied the benefit to the assessee in the present case for alleged non-compliance with the mandatory condition of Section 5(C) / 5(CC) of the Act for not furnishing the declaration form ST 17 but the sole ground is because of availing of the benefit under the Incentive Scheme, 1989. He, therefore, contended that the benefit already given to the respondent assessee by the appellate authorities below and even in the remand order passed in pursuance thereof does not deserve to be taken back at this stage.;