IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WA.No. 855 of 2006 ------ -------------------- AGAINST THE JUDGEMENT IN OP.22999/2000 Dated 30/11/2005 .................... APPELLANT/PETITIONER ------------------------------------ M/S.VIJAY RETREADS, REPRESENTED BY ITS PARTNER, P.V.VENKITESH, 7/503, N.H.BYE PASS ROAD, CHANDRANAGAR, PALAKKAD-678 007. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE DIRECTOR, DIRECTORATE OF INDUSTRIES AND COMMERCE, THIRUVANANTHAPURAM. 2. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, PALAKKAD. 3. THE DEPUTY COMMISSIONER, AGRICULTURAL INCOME TAX AND SALES TAX, PALAKKAD. 4. THE ADDITIONAL SALES TAX OFFICER-IV, II CIRCLE, PALAKKAD. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy, Ag.C.J. & V.Giri, J. ------------------------------------------ W.A.No. 855 of 2006 ------------------------------------------ Dated, this the 16th day of January, 2009 JUDGMENT J.B.Koshy, Ag.C.J. Appellant is a small scale industrial unit engaged in the business of retreading of tyres. The initial investment made by the unit as regards machineries was Rs.35,405/-. Petitioner is entitled to the benefit of Ext.P2 notification SRO No.968/80 which reads as follows: “SRO No.968/9-.- In exercise of the powers conferred by ... the Government of Kerala, hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new Industrial Units under the Small Scale Industries for a period of five years from the date of commencement of sale of such goods by the said units subject to the conditions that the tax if any collected by such units by way of tax on their sales shall be paid over to Government and that sales tax, if any, already paid by such units to Government shall not be refunded. W.A.No.855 of 2006 2 Provided that such units shall produce proceedings of the General Manager, District Industries Centre declaring the eligibility of the units for claiming exemption from sales tax; Provided further that the cumulative sales tax concession granted to a unit at any point of time within this period shall not exceed 90% of the cumulative gross fixed capital investment of the unit. Explanation:- (1) For the purpose of this notification 'New Industrial Units under the Small Scale Industries' shall mean undertakings set up on or after 1st April, 1979, and registered with the Department of Industries and Commerce as a small scale industrial unit, (but shall not include old Industrial units under the Small Scale industries closed down and re-opened under a new banner and style of business, after 1st April, 1979) Explanation :- (2) In computing the fixed capital investments, second hand machinery and equipments procured from within the State of Kerala shall not be considered for sales tax concession.)” 2. On the basis of the above, petitioner is entitled to sales tax exemption of Rs.31,865/-. The above claim was accepted in the assessment orders Exts.P4(a) to P4(e) for the period 1984-85 to 1988-89. But it was suo motu revised by the Deputy W.A.No.855 of 2006 3 Commissioner as well as the appellate authority against which the writ petition was filed. 3. The learned Judge rejected the writ petition and accepted the stand that the benefit is applicable not for the financial year but from the date of the investment of the particular financial year. Such an interpretation is not possible. Petitioner is not claiming exemption for the entire investment from the beginning onwards but only for the financial year in which the investment was made and already covered by the original exemption. In Ext.P7 order with regard to another industry Government ordered as follows: “The company in the petition 4th cited have represented the matter before Government. Government have examined the matter in detail and are pleased to clarify that the unit will be eligible for sales tax exemption upto 90% of the additional investment in the year in which the investment is made. The unit is, therefore, eligible for the concession for 1984, 85 and 86 and not after 1986 alone, on a cumulative basis. I am to request you to take further action in the matter accordingly.” 4. In fact, in the assessment orders they only calculated W.A.No.855 of 2006 4 from the financial year in which the investment was made and not for earlier years. In this connection, we also refer to the decision of the Supreme Court in State of A.P. and others v. Sunita Industries (2005) 13 SCC 573. In the assessment orders concession was also limited to 90% of the cumulative gross capital investment as stated in the second proviso of the notification. In the absence of any ambiguity statutes shall be interpreted on the plain language of the section and different interpretation would amount to reading words which are not found in the provision and would be impermissible. On interpretation of the plain meaning of Ext.P2 notification as well as Ext.P7 exemption order, we are of the opinion that the assessment orders ought not to have been interfered with in suo motu revision. Therefore, writ appeal is allowed. Revisional order and impugned judgment are set aside. Consequently,I.A.No.593 of 2006 stands closed. J.B.Koshy, (Ag. Chief Justice) V.Giri, (Judge) vns W.A.No.855 of 2006 5