P.K.BALASUBRAMANYAN, C.J. - (1.) THE writ petitioner, an assessee under the Bihar Finance Act, has filed this writ petition challenging the communication, annexure 7 dated October 17, 2003, issued by the Deputy Commissioner, Commercial Taxes, Adityapur Circle, informing the petitioner that in terms of the Notifications S.O. Nos. 65 and 66 dated January 12, 2002, the petitioner was entitled to set-off only the sales tax paid in the State of Jharkhand on purchase of raw materials, against the sales tax paid by it on sale of finished goods and was not entitled to set-off the additional tax paid on the purchase of raw materials against the sales tax paid on sale of finished goods and directing the petitioner to deposit the amount of additional tax wrongly set-off. According to the petitioner, a company engaged in the manufacture of coal tar (pitch) and allied products, it was entitled to the concessions held out by the Jharkhand Industrial Policy, 2001 and the Notifications S.O. Nos. 65 and 66, both dated January 12, 2002 and to claim set-off in terms of sections 22 and 23 of the Bihar Finance Act, 1981. The petitioner has been found entitled to such a set-off and once it is found that it was entitled to a set-off, it was entitled to set-off not only the sales tax paid, but also the additional tax paid and the Deputy Commissioner was in error in taking the view that the additional tax paid was not liable to be set-off by the petitioner.
(2.) ACCORDING to the petitioner, the terms of the industrial policy was clear, the relevant clause in the industrial policy was plain, the sections were specific and the notifications were clear and going by them, the set-off took within its purview not only the sales tax paid but also the additional tax paid. In terms of the definition contained in section 2(x) of the Act, tax included sale or purchase tax levied under section 3 as also the additional tax levied under section 6 of the Act. The conclusion of the Deputy Commissioner was clearly unsustainable in the circumstances. On behalf of the Commercial Taxes Department, it is contended that going by the relevant clauses in the Industrial Policy and the notifications relied on by the petitioner, what was liable to be set-off was only the sales tax paid on purchase of raw materials and nothing else. The levy of additional tax was an independent levy under section 6 of the Act and the provision for set-off cannot take in that independent levy, unless so specified by the statute or the notification and in that situation, the Deputy Commissioner was justified in directing the petitioner to deposit the additional tax illegally set-off by the petitioner.
(3.) UNDER clause (28) of the Jharkhand Industrial Policy, 2001, certain benefits were given to the industrial units coming within the purview of that policy. The relevant clause provides : "New industrial units as well as existing units which are not availing any facility of tax deferment or tax-free purchases or tax-free sales under any notification announced earlier, shall be allowed to opt for set-off of Jharkhand sales tax paid on purchase of raw materials within the State of Jharkhand only against sales tax payable either under the Jharkhand Sales Tax Act or the Central Sales Tax Act on the sale, excluding stock transfer or consignment sale outside the State, of finished products made out from such raw materials, subject to a limitation of six months or the same financial year from the date of purchase of such raw materials." ;