ALCATEL SOUTH ASIA LTD Vs. STATE OF HARYANA

JUDGEMENT

(1.) By way of present writ petition invoking jurisdiction under Article 226 of the Constitution of India, the petitioner is assailing the orders passed by the Haryana Tax Tribunal dated 15.9.2005, 19.9.2005 and 18.4.2006.

(2.) Brief facts of the present case are that the petitioner-company has set up its unit at Gurgaon to manufacture digital switches equipment and systems in 1993 and the unit came into commercial production on 1.2.1994. The petitioner-company being eligible under the General Sales Tax Rules, 1975 (hereinafter referred to as the 1975 Rules) applied for issuance of eligibility certificate for claiming benefit of exemption from payment of sales tax. The eligibility certificate was issued to the petitioner -company for a period of seven years with effect from 1.2.1994 with an overall sales tax exemption of Rs. 46.89 crores. Thereafter, the petitioner made an additional capital investment and increased its manufacturing capacity. The petitioner again applied for exemption of the tax under the rules on the expanded capacity in October 1996. The High Level Screening Committee rejected the petitioner's application vide order dated 29.12.1999. Feeling aggrieved by the rejection of its application, the petitioner filed an appeal before the Commissioner and Secretary, Department of Industries, which was accepted by the appellate authority vide order dated 30.10.2000 with the conditions inter-alia that the petitioner would avail all the benefits from the date of entitlement and submitting an undertaking to this effect. Pursuant to the order passed by the appellate authority, eligibility certificate was issued to the limit of Rs. 91.43 crores for a period of seven years commencing from 17.4.2002. The sales tax authorities issued notice on 18.4.2003 asking the petitioner to segregate sales for the period October 1996 to January 2001. The petitioner challenged the notice by way of filing CWP No. 15951 of 2003 before this Court. However, the petition was dismissed vide order dated 13.10.2003 holding that the petition is not maintainable at the stage of show cause notice. The petitioner moved a representation dated 3.9.2003 asking the authorities to provide exemption from 7.10.1996 instead of 17.4.2002 on the expanded unit. The Director Industries, Haryana, rejected the representation dated 3.9.2003. No opportunity of hearing was granted to the petitioner. The petitioner preferred an appeal to the Haryana Tax Tribunal (hereinafter referred to as the Tribunal). Two member Bench of the Tribunal heard the appeal and accepted the same vide order dated 5.4.2004. The Tribunal has clearly held that the assessee should be allowed to change his option. It was further held that the appellate authority does not have any power to impose conditions that are not provided in Rule 28A of the 1975 Rules. A review petition was filed against the order of the tribunal dated 5.4.2004 mainly on the ground that no appeal is provided against the order of the Director and the appeal is maintainable only against the order of the High Level Committee refusing to grant exemption certificate. Two members Bench of the Tribunal differed in their opinion on the review application. One of the members i.e. Shri B.S. Suhag rejected the review application filed by the Deputy Excise and Taxation Commissioner as being incompetent. The Chairman of the Tribunal being other member of the Bench hearing the review petition, held that the Deputy Excise and Taxation Commissioner is competent to file review application. Since there was difference of opinion between the two members Bench of the Tribunal, the chairman ordered that the matter be put up before the full member Bench Tribunal on the issue of maintainability. After reference, the matter ought to have been heard by all the three members of the Tribunal, but the same was heard only by the third member sitting single on 7.7.2005. Before the pronouncement of the order dated 7.7.2005, one of the members of the Tribunal Shri B.S. Suhag had already retired and hence, order impugned cannot be said having been passed by the full member Bench Tribunal.

(3.) The respondents refuted the contents of the writ petition and said that the order was in fact passed by the full member Bench and before retirement everything was over and only judgement was pronounced after the retirement.