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2021 DIGILAW 170 (TRI)

Agartala Plastic Pvt Ltd. v. State of Tripura

2021-09-20

AKIL KURESHI, S.G.CHATTOPADHYAY

body2021
JUDGMENT Akil Kureshi; CJ.:-- The petitioner has filed this petition challenging an order passed by the respondent No.5 in furtherance of the directions issued by this Court dated 12.01.2021 passed in W.P(C) No.598 of 2020. [2] Brief facts are as under: The petitioner is a private limited company and is engaged in manufacturing different types of UPVC pipes and fittings, HDE Coil pipes etc. for which the petitioner has established a manufacturing unit at Agartala in the year 2013. The State of Tripura had framed a scheme called “Tripura Industrial Incentives Promotion Scheme, 2012 (hereinafter to be referred to as the “said scheme”) which scheme envisaged grant of certain incentives in the form of subsidy to specified industries set up on or after 01.04.2012. The subsidy or rebate would be equal to the net amount of Tripura Value Added Tax and Central Value Added Tax and other taxes paid by the industry to the State Government on sale of finished goods, of course subject to certain conditions. [3] The petitioner made the refund claims under the scheme for the period between 01.01.2016 to 31.12.2016 and 01.01.2017 to 31.06.2017. These applications of the petitioner were rejected by the District Industries Centre by two separate orders, both passed on 25th June, 2020 on the sole ground that the claims were submitted after expiry of two years from the period to which the claims related. The petitioner, thereupon, approached the District Industrial Centre under a communication dated 13.07.2020 and made out grounds why it was not able to apply for the subsidy earlier. In such application the petitioner had projected a case that in support of its claims the petitioner had to produce the certificate of payment of taxes by the VAT authority which the petitioner, though had applied in time, was not provided by the said authority for a long period of time despite reminders. This application was not accepted by the District Industrial Centre upon which the petitioner filed W.P(C) No.598 of 2020 which was disposed of by an order dated 12th January, 2021, relevant portion of which reads as under: “4. In short, the case of the petitioner is that the Industrial Unit is eligible for the benefits under the said scheme. For the past period the same had been granted. In short, the case of the petitioner is that the Industrial Unit is eligible for the benefits under the said scheme. For the past period the same had been granted. In the present case, the only reason for not applying for the refund of the taxes was that the VAT department had not issued necessary certificate of payment of VAT. Without filing such copies along with refund application the petitioner could not have asked for refund. According to the petitioner thus it was on account of delay and default on part of one department of the Government that he was prevented from filing refund applications in time. 5. The respondents have filed reply taking a stand that under the scheme there is no provision for extension of time for making refund application and in any case, the petitioner had not made out any grounds for extension of time or condonation of delay while making the application for refund. 6. It is not in dispute that the petitioner is otherwise an eligible unit entitled to the refund of the value added tax under the said scheme, of course subject to fulfillment of the conditions contained therein. The scheme also envisages time limit for making application for refund. However, if the VAT department of the Government had delayed issuing necessary certificates of payment of tax to the petitioner, the application of the petitioner for refund cannot be rejected only on the ground of delay in making the same. Surely one department of the Government cannot cite the reason of another department not acting promptly enough to deny the benefit declared by the Government under the scheme. Further it may be true that the petitioner had not explained such reasons in the applications for refund. However, when the petitioner made a detailed further submission in writing to the authority explaining the reasons which prevented him from making application within time, the same ought to have been examined in the correct factual context. Thus, both the objections of the respondents that the scheme does not envisage extension of time for making application for refund and that the petitioner at the outset had not made out any grounds justifying delay, are turned down. On record, the petitioner has produced applications for grant of certificate by the VAT authorities and copies of reminders. However, that all these aspects be first examined by the District Industrial Centre. On record, the petitioner has produced applications for grant of certificate by the VAT authorities and copies of reminders. However, that all these aspects be first examined by the District Industrial Centre. 7. Under the circumstances, the petition is disposed of with following directions: The District Industrial Centre shall consider the petitioner’s further representations both dated 13.07.2020 copies of which are produced at Annexure-9 to the petition and the contents thereof. If it is found that the petitioner is correct in contending that the refund applications were delayed on account of non-issuance of certificate of payment of tax by the VAT authorities, its applications for refund shall be entertained and examined on merits and refund to the extent payable be released. If, on the other hand, the authority comes to the conclusion that delay in making the applications could not be attributed to the delay in issuance of the VAT payment certificates by the concerned authority, a speaking order shall be passed and communicated to the petitioner. Entire exercise shall be completed within four months from today. 8. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.” [4] The respondent No.5, the General Manager, DIC, West Tripura thereupon passed a fresh order dated 17.04.2021 and once again rejected the petitioner’s applications for grant of subsidy on the ground of delay. In this order he observed that the scheme envisages a period of two years for making the claims. Referring to the petitioner’s inability to obtain VAT paid certificates from the department, he observed that the petitioner should have annexed the supporting bills, vouchers, certificates in place of VAT certificates and at least should have approached the DIC by citing the difficulties being faced in getting the certificates within two years and in such a case, the matter would have been considered valid. Since the petitioner did not do these things, in the opinion of respondent No.5, his applications could not be entertained. He further observed that the department is not empowered to relax the time stipulation as per the existing guidelines and such relaxation would lead to gross violation of the scheme. He also observed that nowhere has the petitioner urged that the time limit provision was not to his knowledge. According to him, obtaining necessary certificates from the department was the sole responsibility of the petitioner. He also observed that nowhere has the petitioner urged that the time limit provision was not to his knowledge. According to him, obtaining necessary certificates from the department was the sole responsibility of the petitioner. In the conclusion he held that the submission of the petitioner that the refund applications were delay due to non-issuance of the certificate by the concerned Sales Tax authorities cannot be accepted. [5] The impugned order suffers from proper understanding of the order of the Court dated 12th January, 2021 and also suffers from lack of proper analysis of the provisions of the scheme. While disposing of the writ petition by the said order dated 12th January, 2021 we had made certain significant observations. We had observed that the petitioner’s applications for refund cannot be held to be delayed on account of one department of the government not furnishing tax paid certificates in time. In essence therefore, the purpose was to allow the authority to examine the facts more minutely expecting that if the petitioner was prevented from making application for refund in time because a department of the government did not provide him requisite certificates, such delay would be condoned. [6] While reconsidering the petitioner’s request for ignoring the delay and granting him subsidy as per the scheme, respondent No.5 went completely in the wrong direction ignoring the observations of the Court. As noted, his first stand was that the scheme does not envisage power of condonation. The Court had asked him to consider certain aspects highlighted in the order and it was not for him to hold that the scheme did not envisage accepting delayed applications even if genuine grounds are made out. His second ground was that the petitioner could have made the application without tax paid certificates which is plainly contrary to the materials on record. Learned counsel for the petitioner correctly pointed out that in the proforma in which a claimant had to make the claim, required such certificates to be annexed. His next ground was that the petitioner should have produced other documents and requested the authority to waive the requirement of producing tax paid certificates and in which case the authority would have accepted his request which again is completely a hypothetical situation. His next ground was that the petitioner should have produced other documents and requested the authority to waive the requirement of producing tax paid certificates and in which case the authority would have accepted his request which again is completely a hypothetical situation. His last ground that the petitioner has not produced any evidence to show that he had pursued the concerned department for early issuance of certificates is just as unacceptable, particularly in facts of the present case. These issues were already settled and dealt with by the Court in the previous round of litigation. We had merely placed the matter back before the competent authority for proper verification of facts and not for fresh legal analysis of the situation which we had already made. [7] Under the circumstances, impugned order dated 17.04.2021 is set aside. The said authority shall examine the petitioner’s refund applications on merits and dispose of the same within two month from today. [8] Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.