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2006 DIGILAW 921 (GAU)

Real Biscuit Pvt. Ltd. v. Commissioner of Taxes

2006-09-27

AFTAB H.SAIKIA, BIPLAB KUMAR SHARMA

body2006
JUDGMENT A.H. Saikia, J. 1. Both the Writ Appeal No. 275 of 1998 and Writ Appeal No. 277 of 1998 witness a challenge to the common judgment and order dated August 7, 1998 passed by the learned single judge in Civil Rule No. 2721 of 1992 and Civil Rule No. 843 of 1993 respectively when in the Writ Appeal No. 362 of 1998 and Writ Appeal No. 182 of 2000 the judgments and orders dated August 3, 1998 [Reported as Assam Tin Manufacturing Company (P.) Ltd. v. Commissioner of Taxes 1999 112 STC 405 Gauand March 10, 2000 passed in Civil Rule No. 2053 of 1993 and Civil Rule No. 2052 of 1993 respectively have been assailed. 2. As common question of law as well as facts were being raised in this batch of writ appeals, all the writ appeals were clubbed together for analogous hearing and are being disposed of by this common judgment and order. 3. Heard the arguments advanced by the learned Counsel representing the parties including the Revenue and also meticulously examined the impugned judgments and orders. 4. This host of writ appeals basically pertains to exemption from sales tax in terms of new package of incentive announced by the Government of Assam by introducing the Industrial Policy of Assam, 1986, a Scheme providing new units set up on or after January 1, 1987 and the existing units undertaking expansion, modernisation or diversification at the same location or of any other place in the State of Assam would be eligible for incentives. It was further provided that expansion, modernisation or diversification of an existing industrial unit would also be eligible for the incentives, if the total capital investment on plant and machinery in the expansion/modernisation or diversification, as the case may, was more than 25 per cent of the total fixed capital investment of the existing unit. Be it noted herein that no right or claim for any incentive under the Scheme was conferred merely on fulfilment of the conditions specified in the Scheme. The scheme also indicated about the eligibility certificate and the implementing agency. One of the incentives under the Scheme of 1986 related to such sales tax exemption on purchase of raw materials as well as of finished products for a period of 5 (five) years, as the case may be, as decided by the Government from time to time. 5. The scheme also indicated about the eligibility certificate and the implementing agency. One of the incentives under the Scheme of 1986 related to such sales tax exemption on purchase of raw materials as well as of finished products for a period of 5 (five) years, as the case may be, as decided by the Government from time to time. 5. Meanwhile, the Government of Assam in order to regulate the provisions of law relating to sales tax in the matter of concessions to industries moved the Bill, namely, Assam Industries (Sales Tax Concession) Bill, 1986 before the State Legislature and that was passed on December 17, 1986. On receipt of the assent of the Governor on January 5, 1987 thereon, the Assam Industries (Sales Tax Concessions) Act, 1986 (for short, "the Act") came into operation with effect from January 6, 1987 on publication of the same in the Assam Gazette Extraordinary. Be it noted that no such statutory provision for exemption as per Scheme of 1986 was provided under the Act. 6. The appellants herein at the time of hearing of the respective writ petitions claimed that though under the sales tax laws including the Act, they were not entitled to get any sales tax concession, as per the Scheme announced by the Government of Assam, 1986 they were very much entitled to get exemption from the payment of sales tax as the scheme in question gave a definite promise and assurance that the industrial units like that of the writ appellants' would be entitled to get the sales tax exemption. 7. The fundamental plea taken by the writ appellants before the writ court was the plea of promissory estoppel. 8. By means of the impugned judgments and orders, the learned single judge rejecting outrightly such plea of promissory estoppel categorically held that that the principle of promissory estoppel was based on equity and to avoid the injustice and the same could not affect the operation of law. It was further observed that the doctrine of promissory estoppel could not estop the authorities from discharging their lawful duties and the powers conferred on them by the statute and the estoppel also could not be pleaded against the promised activities of public authority which was per se unlawful. 9. It was further observed that the doctrine of promissory estoppel could not estop the authorities from discharging their lawful duties and the powers conferred on them by the statute and the estoppel also could not be pleaded against the promised activities of public authority which was per se unlawful. 9. Having regard to the views expressed in those impugned judgments and orders, we are of the considered opinion that in the instant cases, after the commencement of the Act, the plea of promissory estoppel undoubtedly cannot be invoked to compel the Government to carry out its promise in terms of the Scheme of 1986 being contrary to the statute and we are, therefore, in full agreement with the findings arrived at by the learned single judge. 10. At this stage, it is contended on behalf of the Revenue that the issue raised in this bunch of writ appeals has already been decided by a Division Bench of this Court in case of Doson Chemicals Pvt. Ltd. v. State of Assam reported in 2001 124 STC 305 : 2001 2 GLT 481 wherein it was expressly held that the doctrine of promissory estoppel could not be invoked to the legitimate action which is ultra vires to the statute. 11. However, the writ appellant's side referring to paragraphs 6 and 11 of the Doson Chemicals' case 2001 124 STC 305 (Gau) : 2001 2 GLT 481 has contended that in those paragraphs, this Court recorded that the Assam Industries (Sales Tax Concessions) Act, 1986 was repealed by the Assam Industries (Sales Tax Concessions) Act, 1987 with effect from January 5, 1987 which was not a correct view as there was no Act of 1987 enacted by repealing the Act of 1986 and as such this judicial pronouncement is not applicable in the instant case. 12. 12. Refuting such statement, it is vehemently contended on behalf of the Revenue that in the review petition being Review Petition No. 83 of 2001, by order dated August 4, 2003, the Division Bench of this Court reviewing the above observations made in paragraphs 6 and 11 above referred, correctly stated the factual position which was as follows: While assuming the fact that the Assam Industries (Sales Tax Concessions) Act, 1986 has been repealed by the Assam Industries (Sales Tax Concessions) Act, 1987 with effect from January 5, 1987 is not correct as quoted in the judgment dated May 14, 2001 still the ultimate result of the judgment does not change. It is the contention of the appellant that it is not claiming any exemption under the 1982 Industrial Policy of the State of Assam by virtue of the Assam Industries (Sales Tax Concessions) Act, 1986 being in force but it is claiming the implementation of the policy, which has been introduced by the State of Assam on December 24, 1986, which has not been given effect by the State of Assam by issuance of relevant notification and thus as per the appellant, the Government is bound by the promise made to the appellant under the policy decision dated December 24, 1986 and because of that it is entitled for the concession under the Assam Industries (Sales Tax Concessions) Act, 1986. The Division Bench by its judgment and order dated May 14, 2001 passed in W. A. No. 393 of 1998 has refused to accept the contention of the appellant that the State is bound by the principle of promissory estoppel. The decision, as contended by the appellant, may not be correct but that would not be a reason for review of the judgment. At best the appellant is at liberty to challenge the order passed by the Division Bench of this Court by filing appeal to the higher court. In that view of the matter the review application is dismissed. 13. In view of the above premises, this writ appellate court finds no convincing or compelling reasons calling for interference with the impugned judgments passed by the writ court and it is, thus, unhesitatingly held that the cardinal issue raised herein is squarely covered by the Doson Chemicals' case [2001] 124 STC 305 (Gau) : 2001 2 GLT 481. 14. 13. In view of the above premises, this writ appellate court finds no convincing or compelling reasons calling for interference with the impugned judgments passed by the writ court and it is, thus, unhesitatingly held that the cardinal issue raised herein is squarely covered by the Doson Chemicals' case [2001] 124 STC 305 (Gau) : 2001 2 GLT 481. 14. For the forgoing reasons, observations and discussions, this batch of writ appeals fails and stands dismissed. 15. Taking into account the facts and circumstances of the case, there shall be no order as to costs. In favour of Department.