IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 5281 of 2003(D) ------------------------------- PETITIONER: ------------------- M/S. GRACE FAST FOODS, PUTHANAGADI, KOTTAYAM-686 001, REPRESENTED BY ITS PROPRIETRESS MRS.GRACE GEORGE. BY ADV. SRI.A.KUMAR RESPONDENTS: ----------------------- 1. THE DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, TRIVANDRUM, REPRESENTED BY ITS DIRECTOR. 2. THE DISTRICT INDUSTRIES CENTRE, KOTTAYAM, REPRESENTED BY ITS GENERAL MANAGER. 3. THE ADDITIONAL SALES TAX OFFICER IV, 1ST CIRCLE, KOTTAYAM. 4. STATE OF KERALA, REPRESENTED BY FINANCE SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.GEORGE VADAKKEL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.5281/2003 ORDER ON CMP. NO.9298/2003 IN OP. NO.5181/2003 DISMISSED 19.03.2008 SD/- P.R.RAMAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE MANUAL OF TAX EXEMPTION SCHEME PAGES 1 TO 5. EXT.P2:- COPY OF THE ORDER EXEMPTION ISSUED BY THE 2ND RESPONDENT. EXT.P3:- COPY OF THE LETTER DT. 6.4.01 OF THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4:- COPY OF THE REPLY DT. 19.4.01 OF 2ND RESPONDENT THE PETITIONER. EXT.P5:- COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P6:- COPY OF THE ORDER IN APPEAL DT. 2.1.03 PASSED BY THE IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.5281 of 2003-D ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of March, 2008 J U D G M E N T The petitioner is an assessee under the K.G.S.T Act, which is a Small Scale Industrial Unit. It applied for exemption as per Ext.P1 Scheme for a total amount of Rs.9,23,767/-, the break-up of which is shown in paragraph No.3 of the writ petition, as follows:- a) Land Rs.1,54,350/- b) Building Rs.1,90,000/- c) Plant & Machinery Rs.1,40,817/- d) Motor Vehicle Rs.4,38,600/- ------------------- Total: Rs.9,23,767/- ======== 2. The General Manager of the District Industries Centre, the primary authority to consider its application, by Ext.P2 granted exemption only for an amount of Rs.57,475/- without giving any details as to why the other claim was rejected. Hence, the petitioner sought for further clarification by filing Ext.P3 representation. Thereupon, Ext.P4 order was issued by the General Manager giving his reason for his rejection under each item. The claim for exemption in respect of the amounts that have been spent towards acquisition of the land and building was O.P.No.5281/2003-D -: 2 :- rejected only on the ground that the documents of title pertaining to the same is not in the name of the unit but is in the name of the proprietrix owning the unit; regarding plant and machinery, what was found eligible is only Rs.57,475/-, which is stated to have been granted; regarding goods and carrier, the amount invested is for the purchase of a Tata Sumo Omni Bus and not intended for transportation of any goods pertaining to the unit. On further appeal, the State Level Committee by Ext.P6 order merely endorsed the view of the District Level Committee. Hence the petitioner seeks to quash Exts.P2 and P6. 3. No counter afffidavit is filed in this matter. 4. Heard both sides. As regards the rejection of its claim for undisputed amounts spent for acquisition of land and building is concerned, in the absence of any dispute that this is a proprietorship concern, the land and building could only be in the name of the proprietor or proprietrix as the case may be and cannot be in the name of the unit since the proprietorship concern is not a legal entity different from the proprietor. Hence, admittedly, land and building are owned and possessed and the titles stand in the name of the proprietrix. The authority ought not O.P.No.5281/2003-D -: 3 :- have rejected the claim of the amounts spent on acquisition of land and building merely on the ground that it is not in the name of the unit but in the name of the proprietrix. Hence, rejection of the claim is without any legal basis. Petitioner is therefore entitled for exemption in respect of the amounts spent for acquisition of the land and building. 5. The next question with regard to the investment made on plant and machinery. The District Level Committee sanctioned claim for Rs.57,475/- out of the claim of Rs.1,40,817/-and disallowed Rs.83,342/- for want of proper bills and vouchers and certain items seen purchased after the date of commencement of production. The State Level Committee found the action of the District Level Committee as per the rule. It is for the petitioner to establish with valid evidence to support the claim, in the absence of which, it cannot be said that the order is in any way illegal. Hence, this claim is rejected and the order passed by the authority is confirmed. 6. Regarding the amount spent on purchase of a Tata Sumo Omni Bus, it cannot be disputed that it is not a goods vehicle. Hence, rejection is sustained. O.P.No.5281/2003-D -: 4 :- 7. In the result, the original petition is allowed in part allowing the exemption claimed in respect of the land and building alone. Appropriate order shall be passed by the General Manager of the District Industries Centre giving effect to the judgment as above. P.R.RAMAN, Judge ms