COMMERCIAL TAXES OFFICER Vs. NOKHA COTTON INDUSTRIES

JUDGEMENT

(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 :-

(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.