Case: M/S. ULTRATECH CEMENT LTD. &amp; ANR.  Vs. STATE OF RAJASTHAN &amp; ORS

extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax. 31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum. As observed hereinbefore, even if the decision of State Government to recall 25% availed subsidy is upheld, the point still requiring consideration would be as to whether the State is justified in seeking to recover interest at this rate of 18% per annum? Levy of Interest 32. Coming to the question of levy of interest on the amount sought to be recovered, it has been contended on behalf of the appellants that Clause 10 of RIPS-2003 providing for charging of interest has no application to the present case because grant of 25% subsidy has been revoked not because of any default committed by the appellants but only because of a change of opinion by the respondents after about eight years. The respondents, on the other hand, assert that if benefits have been received under a mistake, the same must be returned with interest so as to avoid unjust enrichment. 33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach. As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy? However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC. 33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.2018. 33.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them. 33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum. 33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum. 33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment. CONCLUSION

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. We have given anxious consideration to the points so arising in this case with reference to the rival submissions and the law applicable; and have scanned through the entire recordEntitlement of the Appellant to Capital Investment Subsidy : The extent thereof : effect of the decision of BIDIIn our view, these submissions suffer from several shortcomings, where a fine but well-defined line of separation between the resolution/decision of BIDI dated 01.04.2006 and the decision of SLSC dated 17.3.2011, is ignored19.1. As noticed, the application earlier made by the company was considered in the Pre-BIDI meeting dated 28.03.2006 and the recommendations therein had only been to the effect that the cement package recently announced and RIPS-2003 should be applicable to the company. The decision of BIDI in its meeting dated 01.04.2006 had also been specifically in line of the Pre-BIDI recommendations where it was directed that the recently announced cement package and RIPS-2003 will be applicable on the company. At the given stage of Pre-BIDI recommendations dated 28.03.2006 and the decision of BIDI dated 01.04.2006, the aforesaid sub-clauses (vi) and (vii) of Clause 7 of RIPS-2003 were in existence and, in fact, the phrase recently announced cement package precisely referred to the said provisions of sub-clauses (vi) and (vii), which had been inserted to Clause 7 of RIPS-2003 on 02.12.2005. Moreover, even when BIDI stated that recently announced cement package would be applicable to the company, it was coupled with the requirement of applicability of the Scheme, i.e., RIPS-2003. After the aforesaid decision of BIDI dated 01.04.2006, the company, in its letter dated 26.04.2006 to the Commissioner of Industries, sought registration in terms of sub-clause (vii) of Clause 7 of RIPS-2003 for a new cement plant/captive power plant, intended to be established at Kotputli. However, there had been significant developments/revisions in relation to RIPS-2003 after the said decision of BIDI dated 01.04.2006 and the application of the company dated 26.04.2006, where the said sub- clauses (vi) and (vii) of Clause 7 were specifically deleted from the Scheme on 28.04.2006. Noticeably, no decision had been taken by SLSC to grant subsidy to the company in terms of the then existing sub-clauses (vi) and (vii) of Clause 7 until 28.04.2006. The application later made by the company on 21.02.2010 and the decision thereupon taken by SLSC on 17.03.2011 do not and cannot co-relate with the decision of BIDI dated 01.04.2006 whose initial part, i.e., recently announced cement package became redundant with the aforesaid amendment of Clause 7 of RIPS-2003 and deletion of its sub-clauses (vi) and (vii)19.2. Apart from the above, it is also significant to notice that the competent authority, to sanction subsidy under RIPS-2003, had only been SLSC in terms of Clause 6 thereof. Though it has been strenuously argued by the learned senior counsel for the appellant that BIDI was a high-powered body with the Chief Minister being its Chairperson and it has also been asserted that the Secretary Finance had equally been a Member of BIDI as also SLSC, but, we are afraid, these submissions do not advance the cause of the appellant in any manner. Even if BIDI had been a high-powered body, its resolutions or even directives could have only been read in conformity with the provisions applicable to any particular proposition; and the fact that one of the Secretary had been a member of both BIDI and SLSC, the resolution of BIDI could not have been imported into the decision making process of SLSC beyond what was permissible under the Scheme20. The other limb of submissions that BIDI had granted 75% subsidy under proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 remains unacceptable for a variety of reasons. It is apparent on the face of the record that neither in Pre-BIDIs recommendation dated 28.03.2006 nor in the final decision of BIDI dated 01.04.2006, there had at all been any proposition for invocation and application of the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003. The application made on behalf of the company had precisely been with reference to the contents of the said sub-clauses (vi) and (vii) of Clause 7 seeking 75% subsidy, 45% being allowable upfront and remaining 30% in the form of interest and wage/employment subsidy, with cap of interest subsidy to the extent of 5% of the documented rate of interest. There had never been any proposal before BIDI in the case of the appellant company to invoke the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 so as to increase the maximum limit of subsidy to 75%. Proceeding ahead of the decision of BIDI dated 01.04.2006, the fact that the company was consciously seeking the benefit under sub-clause (vii) of Clause 7 of RIPS-2003 is again evident on the face of the record on a bare look at the contents of its application dated 26.04.2006. No decision on this application was taken; and within two days of making of this application, the State Government amended RIPS-2003 and deleted the aforesaid sub-clauses (vi) and (vii) of Clause 7. The company made a desperate attempt to persuade the State Government to withdraw such amendment of deletion of sub-clauses (vi) and (vii) of Clause 7 of the Scheme and to grant benefit of those deleted provisions by way of its representation dated 26.05.2006 but, the communication thereafter sent on 17.06.2006 to the company by BIP was again to the effect that the company would be eligible for the concessions as contained in RIPS-2003. Even in the MoU dated 30.11.2007, what the State Government undertook was to extend support in the form of providing incentives as permissible under RIPS-2003 together with additional support as per the prevalent policy20.1. In our view, whether each of the aforesaid background aspects is seen in isolation or whether all these aspects are put together, it cannot be deduced, by any stretch of imagination, that a conscious decision was ever taken by BIDI at any stage that the appellant company would be extended any differential and advantageous treatment by allowing 75% subsidy in place of the ordinarily allowable 50%20.2. Invocation of proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 seems to have only been a creation of SLSC in its meeting dated 17.03.2011 while dealing with the application made by the appellant on 21.02.2010. Significantly, even in the said application, what the appellant claimed had only been the concession in terms of sub-clause (vi) of Clause 7 of RIPS-2003. The claim precisely was that the benefits may be allowed in terms of the said notification dated 02.12.2005. The SLSC, while taking up the said application, on its own, connected the prayer of the appellant to the decision of BIDI and, for that matter, read as if BIDIs decision had been to grant subsidy to the extent of 75% in terms of the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003. We are unable to find any rationale and any logic that SLSC, in its meeting dated 17.03.2011, imported the said proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 into the decision of BIDI dated 01.04.2006 and then, applied such incorrect reading of BIDIs order in its decision making process so as to grant 75% subsidy. The SLSC, who had the power to grant subsidy upto 50% could not have granted beyond this limit by unwarranted application of the decision of BIDI dated 01.04.2006 and that too with its misconstruction; by reading into it such powers, which had neither been invoked nor exercised by BIDI. The decision of SLSC dated 17.03.2011 and its repeat decision dated 24.11.2011, turn out to be wholly perverse and could only be disapproved21. Taking up the question if the decision of BIDI is relatable to the grant of a customised package, the answer would be in the negative without requiring much discussion because such grant of customised incentive package for any particular company or establishment was governed by Clause 6-A of RIPS-2003 that had an entirely different prescribed authority in the form of a Committee, who was supposed to examine individual cases and could have made recommendation for sanction of the customised incentive package through BIDI. In the entire length of dealings in this matter, we are unable to find any such decision by the Committee referred to in Clause 6-A and any recommendation for customised incentive package in relation to the appellant. The decision of BIDI dated 01.04.2006 also does not refer to nor is relatable with any customised package meant for the appellant company22. In an overall conspectus of the record and various amendments/revisions of RIPS- 2003, it appears that though at one stage (i.e., on 02.12.2005), the State Government thought it proper to announce an entirely different treatment to cement units by extending 75% subsidy to them with a different methodology and hence, inserted sub-clauses (vi) and (vii) to Clause 7 of RIPS-2003 but, it did not continue with that policy and deleted the said sub-clauses on 28.04.2006. It remains trite that extending of any incentive in the form of exemption, rebate, concession or subsidy is a matter of the policy of the Government and for that matter, fiscal policy. Ordinarily, such framing of the policy remains within the domain of the Government; and the Government is entitled to frame a particular policy and to alter the same, as deemed fit and proper. As to whether the cement industry was to be granted 75% subsidy under RIPS-2003 or not was definitely a matter of the policy of the Government; and when such a policy was not in existence at the time of consideration of the application of the appellant, no benefit could have been claimed under a non-existent policy23. In the given set of facts and circumstances, in our view, the Additional Chief Secretary has rightly held that SLSCs decision dated 17.03.2011 and its repeat decision dated 24.11.2011 had been erroneous on the very fundamentals where it was assumed as if BIDI had already sanctioned 75% subsidy to the company. The High Court has also independently examined the entire matter in requisite details and we are unable to find any infirmity when the High Court has held that the appellant company was only entitled to subsidy to the extent of 50% of the tax payable and deposited and not to the extent of 75%.SLSCs decision of granting 75% subsidy to the appellant: whether a possible view of the matter24. The suggestion on behalf of the appellant company, that if two views were possible and the SLSC in its earlier decision had taken one of the views, then the same could not have been interfered with, has its own shortcomings24.1. In the first place, the possibility of so called other view (the wrong one) could arise only if SLSC is held entitled to simply turn itself away from the applicable provisions of the Scheme while ignoring the fact that sub-clauses (vi) and (vii) of Clause 7 had already been deleted; and is simultaneously conferred with dubious discretion to interpret the decision of BIDI in whatever manner it would chose to. Obviously, such arbitrary authority or unfettered discretion is not available to any decision taking body; and could least be countenanced for a responsible body of the Government, like SLSC, who deals with public exchequer. Having examined the record in its totality, we have not an iota of doubt that the initial decision of SLSC had not only been erroneous but had been highly perverse, reaching the level of absurdity. The view of SLSC cannot be regarded as a possible view of the matter from any standpoint or any angle24.2. Apart from the above, even if it be assumed for the sake of argument that there was any ambiguity in the applicable provisions of RIPS-2003 or the decision of BIDI, we are clearly of the view that the benefit of any such ambiguity could not have been extended to the appellant company. If at all there had been any ambiguity, the benefit thereof would have only gone in favour of revenue for the simple reason that under the provisions in question, the State had agreed, by way of incentive, to part with a portion of its revenue. Such provisions, whether in the statute or in the non-statutory document, by their very nature, are subject to strict interpretation so far as their applicability is concerned. The principles of law in this regard are well settled with the Constitution Bench decision of this Court in the case of Dilip Kumar & Co. (supra).Recently, in the case of Ramnath & Co. v. Commissioner of Income Tax: Civil Appeal Nos.2506-2509 of 2020 decided on 05.06.2020, while dealing with an incentive provision contained in Section 80-O of the Income Tax Act, 1961 (Hereinafter referred to as the Act of 1961) , this Court has taken note of the principles laid down in Dilip Kumar & Co. and has held, inter alia, as under :-17.3. In view of above and with reference to several other decisions, in Dilip Kumar & Co., the Constitution Bench summed up the principles as follows:-66. To sum up, we answer the reference holding as under:66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue. 66.3. The ratio in Sun Export case is not correct and all the decisions which took similar view as in Sun Export case stand overruled.(emphasis in bold supplied)17.4. Obviously, the generalised, rather sweeping, proposition stated in the case of Sun Export Corporation (supra) as also in other cases that in the matters of taxation, when two views are possible, the one favourable to assessee has to be preferred, stands specifically disapproved by the Constitution Bench in Dilip Kumar & Co. (supra). It has been laid down by the Constitution Bench in no uncertain terms that exemption notification has to be interpreted strictly; the burden of proving its applicability is on the assessee; and in case of any ambiguity, the benefit thereof cannot be claimed by the subject/assessee, rather it would be interpreted in favour of the revenue19. Without expanding unnecessarily on variegated provisions dealing with different incentives, suffice would be to notice that the proposition that incentive provisions must receive liberal interpretation or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court. The law declared by the Constitution Bench in relation to exemption notification, proprio vigore, would apply to the interpretation and application of any akin proposition in the taxing statutes for exemption, deduction, rebate et al., which all are essentially the form of tax incentives given by the Government to incite or encourage or support any particular activity……24.3. In view of the above, contention on the part of the appellant about existence of any ambiguity in the matter and extending the benefit of ambiguity to itself could only be, and is, rejectedDoctrine of Contemporanea Expositio : if applicable?In our view, neither this doctrine could be invoked in the present case nor the principles related therewith could be applied.25.3. Suffice it to observe for the present purpose that in essence, the doctrine of Contemporanea Expositio is applied as a guide to the interpretation of a statute or even document by referring to the exposition that the same had received from competent authority at the relevant point of time. This doctrine is also relatable to the doctrine of stare decisis whereunder, an exposition standing for a long length of time, is considered to be a law settled and is applied as such. As regards the contemporaneous construction placed by the administrative or executive officers charged with executing statute, the Courts lean in favour of attaching considerable weight to the same but, it cannot be laid down that understanding of a particular administrative or executing authority is always fait accompli and has to be applied even if erroneous. The true principle is just to the contrary: that is, if a construction placed by the contemporary authority is found to be clearly wrong or erroneous, the same deserves to be disregarded25.4. In the case of Spentex Industries (supra), the question was as to whether the manufacturer/exporter was entitled to rebate of excise duty paid both on the inputs and on the manufactured product, when the excise duty was paid on the manufactured product and also on the input, which had gone into manufacturing and the manufactured product was exported. It was in the context of the aforesaid question that this Court, in the process of interpretation of the relevant Central Excise Rules, 2002 and the notification thereunder, referred to Contemporanea Expositio in regard to the notifications issued by the Government in giving effect to the Rule in question; and it was observed that when the Centre, who had framed the Rules as also issued notifications, had been of the opinion that rebate was to be allowed on both forms of excise duty, the Government was bound thereby. This decision does not even remotely apply to the case at hand and the erroneous decisions of SLSC are not fait accompli merely because SLSC chose to put a wrong construction on the decision of BIDI. On the facts and in the circumstances of the present case, invocation of the doctrine of Contemporanea Expositio on behalf the appellant remains entirely inapt and the contentions in that regard could only be rejected25.5. That the doctrine of Contemporanea Expositio cannot be invoked in the case of present nature would also be clear by visualising the result, if at all this doctrine is applied. It is not far to seek that if at all this doctrine is applied, the consequence would be that howsoever erroneous a decision by the executive or administrative authority may be, once it emanates from the understanding of some of the officers or authorities, the same would acquire immunity from scrutiny for all time to come. Such has never been the intent of the doctrine of Contemporanea Expositio nor could such a result be countenanced.26. Another line of submissions on behalf of the appellant based on the principles of promissory estoppel remains equally baseless. Of course, while rejecting such a contention, the High Court observed that this doctrine cannot be invoked against a statute but, at the same time, the High Court also categorically found that in fact, no representation was held out to the appellant by BIDI or SLSC as sought to be alleged26.1. RIPS-2003 had admittedly been a non-statutory scheme but that hardly makes a difference looking to the nature of purport of this Scheme whereby the State was ultimately to extend the benefit by reducing its intake of the amount of Sales Tax/VAT; and such an intake is indeed governed by the statute. This apart, as noticed hereinbefore, it cannot be deduced that a conscious decision was ever taken at any stage or at any level that the appellant was to be extended any differential and advantageous treatment by SLSC and was to be allowed 75% subsidy in place of the ordinarily allowable 50%. BIDI never issued any direction to SLSC to grant 75% subsidy to the appellant. It merely directed that the recently announced cement package and RIPS-2003 shall be applicable on the company. Obviously, the case of the appellant was required to be dealt with by SLSC only in accordance with the applicable provisions contained in RIPS-2003. The provisions under which the appellant could have availed tax subsidy upto 75% i.e., the said sub-clauses (vi) and (vii) of Clause 7, were deleted on 28.04.2006, only two days after the company submitted the application dated 26.04.2006 for availing benefit thereunder. The repeat request of the company to withdraw such deletion and to allow benefit under the said deleted sub-clauses, under its representation dated 26.05.2006, did not meet with any success and the only response of the Government through BIP was to the effect that the company would be eligible for concessions as contained in RIPS-2003. Even in the MoU dated 30.11.2007, what the State undertook was only to provide incentives as permissible under RIPS-2003 together with additional support as per the prevalent policy. So far availing 75% subsidy under proviso to Clauses 7(i)(a) and 7(i)(b) is concerned, the appellant was required to make an application to SLSC for that purpose whereupon SLSC could have referred it to BIDI but, neither any such application was made by the appellant nor any such matter was ever placed before BIDI until it remained in existence i.e., 07.06.2009. In an overall view of the matter, it is difficult to find that at any stage, any such representation was made by the State Government which led the company to alter its position26.2. Besides the above, when the decisions of SLSC dated 17.03.2011 and 24.04.2011 turn out to be unauthorised and not in accord with the applicable provisions of the Scheme, the principles of promissory estopple cannot be invoked for their enforcement. In this regard, reference to the following passage from the decision of this Court in the case of Dr. Ashok Kumar Maheshwari v. State of U.P. & Anr.: (1998) 2 SCC 502 would suffice :-22. Whether a promissory estoppel, which is based on a promise contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India : (1995) 1 SCC 274 as also in Shabi Construction Co. v. City & Industrial Development Corpn.: (1995) 4 SCC 301 wherein it is laid down that the rule of promissory estoppel cannot be invoked for the enforcement of a promise or a declaration which is contrary to law or outside the authority or power of the Government or the person making that promise.(emphasis in bold supplied)26.3. Even otherwise, when the decision of SLSC, or any decision of any authority for that matter, was subject to revision by the Government in terms of Clause 13 of the Scheme, it cannot be suggested that the said power of revision cannot be invoked. In other words, the principles of promissory estoppel cannot operate against such revisional power of the Government. Hence, this part of the contentions also deserves to be, and is, rejected.Exercise of powers of revision by the State Government under Clause 1327. For the self-same reasons aforesaid, the contentions urged on behalf of the appellant against the exercise of power of revision under Clause 13 of RIPS-2003 with reference to the decision of this Court in the case of Malabar Industrial Co. (supra) turn out to be totally devoid of substance.27.1. In Malabar Industrial Co. (supra), this Court construed Section 263 of the Act of 1961 wherein too, the basis for exercise of power of revision by the Principal Commissioner or Commissioner is akin to Clause 13 of RIPS-2003 but with a little difference. Under Section 263 of the Act of 1961, the Commissioner concerned could exercise the power of revision, if he considers that the order passed by the Assessing Officer is erroneous insofar as it is prejudicial to the interests of the Revenue whereas in Clause 13 of RIPS-2003, such power could be exercised by the State Government in Finance Department in relation to an order passed by any screening committee wherever it is found to be erroneous and prejudicial to the interest of the State Revenue27.1.1. For the construction of the aforesaid statutory provision, this Court observed in Malabar Industrial Co. (supra) that the phrase prejudicial to the interest of the Revenue has to be read in conjunction with the expression erroneous for the order passed by the Assessing Officer. In fact, such a process of interpretation is not even required in the present case because the two aspects, i.e., erroneous and prejudicial to the interest of Revenue have already been stated with the conjunction and in Clause 13 of the Scheme27.1.2. It is also noteworthy that even in the case of Malabar Industrial Co. (supra), this Court, ultimately, upheld the exercise of jurisdiction by the Commissioner under Section 263(1) of the Act of 1961, particularly when it was found that there was no material to support the view taken; and the Assessing Officer had failed to make the requisite enquiry, rather the questioned order was found to have been passed by the Assessing Officer without application of mind. This Court, inter alia, observed and held as under :-10. The phrase prejudicial to the interests of the Revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. (See Rampyari Devi Saraogi v. CIT: (1868) 67 ITR 84 (SC) and in Tara Devi Aggarwal v. CIT: (1973) 88 ITR 323.) 11. In the instant case, the Commissioner noted that the Income Tax Officer passed the order of nil assessment without application of mind. Indeed, the High Court recorded the finding that the Income Tax Officer failed to apply his mind to the case in all perspective and the order passed by him was erroneous. It appears that the resolution passed by the Board of the appellant Company was not placed before the Assessing Officer. Thus, there was no material to support the claim of the appellant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the conclusion that the order of the Income Tax Officer was erroneous is irresistible. We are, therefore, of the opinion that the High Court has rightly held that the exercise of the jurisdiction by the Commissioner under Section 263(1) was justified.27.1.3. The observations and conclusions aforesaid, do not advance the cause of the appellant; and if at all of any application, they operate only against the case of the appellant27.2. In the present case, as observed hereinbefore, the initial decision of SLSC was entirely erroneous and cannot be said to be a possible view of the matter. Coupled with that, the said decision was directly prejudicial to the interest of revenue where the State exchequer was to part with extra 25% of the tax amount received or receivable from the appellant. As noticed, the learned ACS, while passing the order dated 12.03.2008 in exercise of such power of revision under Clause 13 of the Scheme, has meticulously examined the entire material and has recorded each and every finding with due regard to the dealings of the parties and the provisions of Scheme as applicable. The exercise of power of revision as per Clause 13 of the Scheme remains unexceptionable in the present case.Effect of availing 75% subsidy for 7 yearsSuch a contention does not carry any substance for the simple reason that sub-clause (b) of Clause 13 of the Scheme specifically provides for a period of five years from the date by which benefits under the Scheme are availed of, to be the period within which the power of revision could be exercised by the State Government. Admittedly, in the present case, the appellant company had availed the benefits until the month of February 2017 and the order of revision was passed on 12.03.2018, well within the period of five years stipulated in the Scheme. In this view of the matter, reference to the decisions like that of this Court in the case of Birla Jute & Industries Ltd. (supra) remains entirely misplaced. The observations in the referred decisions are not relatable to the specific stipulation of the Scheme in question and need no further dilation29. It is also noteworthy that the fundamental questions on the correctness of the decision of SLSC dated 17.03.2011 were indeed raised by the Finance Department of the Government by its letter dated 17.11.2011. As noticed, the Industries Department chose not to respond to the said communication and reminders of the Finance Department for an abnormal length of time and sent a reply only in the month of February 2017. By that time, the appellant had practically availed the entire advantage under the questioned decision of the SLSC. Thereafter, the SLSC re-examined the matter only on 22.05.2017 and left it for the Finance Department to take proceedings under Clause 13 of RIPS-2013. In the given set of facts and circumstances, the suggestion that already availed benefit cannot be withdrawn turn out to be hollow and baseless because whatever was obtained by the appellant, beyond its entitlement, had only been based on an erroneous and unauthorised decision of SLSC. In any case, RIPS-2003 being a matter of concession in the form of subsidy, securing an advantage by the appellant at the cost of public exchequer could not have been allowed and, for the Scheme itself having reserved the powers in the State Government to revise the erroneous and prejudicial order within a period of five years from the date of fully availing of the benefits, such powers have rightly been invoked and exercised by the State Government.Summation on major points for determination30. The discussion foregoing leads to the clear answers that BIDI, in its decision dated 01.04.2006 never directed for grant of 75% subsidy to the appellant company in terms of proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003 nor allowed any customised package to the company. The position of record is crystal clear that BIDIs decision dated 01.04.2006 had only been for allowing recently announced cement package to the company and that was also coupled with the requirement of applicability of RIPS-2003. The initial part of this decision of BIDI dated 01.04.2006 and the companys prayer dated 26.04.2006 for registration in terms of sub-clause (vii) of Clause 7 of RIPS-2003 became redundant on 28.04.2006 with the amendment of Clause 7 of RIPS-2003 and deletion of sub-clauses (vi) and (vii) thereof because no decision had been taken by SLSC to grant subsidy to the company in terms of the said sub-clauses (vi) and (vii) of Clause 7 by that date i.e., 28.04.2006. Further, the view taken by SLSC in its initial decisions, to grant 75% subsidy to the appellant on the basis of the decision of BIDI, while reading as if BIDI had taken such decision under proviso to Clauses 7(i)(a) and 7(i)(b) of RIPS-2003, had been entirely perverse and unauthorised; and had not been a possible view of the matter. There had not been any ambiguity in the decision of BIDI; and if at all there was any doubt or ambiguity, the benefit thereof could not have gone to the appellant. The appellant company was entitled to subsidy under RIPS-2003 only to the extent of 50% of tax payable and deposited and not 75% as allowed by SLSC30.1. It is also clear that the doctrine of Contemporanea Expositio neither applies to this case nor inures to the benefit of appellant. The principles of promissory estopple are equally inapplicable and the State Government has rightly exercised the powers of revision under Clause 13 of RIPS-2003 to interfere with the erroneous decisions of SLSC whereby the appellant was allowed 25% extra subsidy and which was, obviously, prejudicial to the interest of revenue; and mere availing of the benefits by the appellant under the erroneous decisions of SLSC is of no effect, particularly when the State Government has exercised the powers of revision within the time stipulated in Clause 13 of RIPS-200331. In view of the above, we have no hesitation in affirming the order of the High Court dated 11.01.2019 and in turn, approving the order of revision dated 12.03.2018 insofar the Additional Chief Secretary held that the Kotputli Cement Works Unit of the appellant company was entitled to Capital Investment Subsidy only to the extent of 50% of the payable and deposited tax and not to the extent of 75%, as availed by it pursuant to the Entitlement Certificates dated 29.04.2011 and 24.11.2011 erroneously issued by the State Level Screening Committee. The SLSC was rightly directed to issue the new Entitlement Certificate for subsidy to the limit of 50% of total tax to the said Kotputli Unit of the appellant company; and the company was rightly directed to refund the amount of subsidy availed in excess of 50% of payable and deposited tax31.1. However, in the impugned order dated 12.03.2018, the appellant was also directed to make such refund together with interest at the rate of 18% per annum.33. It remains undeniable that Clause 10 of RIPS-2003, providing Terms and Conditions attached to the benefits availed under the Scheme, envisaged that the breach of any of the condition would make the Capital Investment Subsidy/ exemption amount liable to be recovered as Tax or arrears of land revenue along with interest @ 18% per annum from the date from which the Capital Investment Subsidy was provided. It is not the case of the respondents that the appellant had committed breach of any of the conditions enumerated in Clause 10 of the Scheme and that the excessive amount of subsidy (25%) was being recovered because of any such breach.As noticed, entitlement of the appellant to 50% subsidy has not been questioned; and the only question had been as to whether the appellant company could have availed 75% subsidy?However, disbursement of such 75% subsidy to the appellant was only on the basis of the erroneous decisions taken and Entitlement Certificates dated 29.04.2011 and 24.11.2011 issued by SLSC.33.1. Even when the said decisions of SLSC are found erroneous and invalid; and the appellant company is found entitled to subsidy only to the extent of 50%, it cannot be said that the excess 25% is relatable to breach of any of the conditions of the Scheme on the part of the appellant nor the appellant could be said to have availed the excessive amount of subsidy by way of any misrepresentation. The basic fault had been on the part of SLSC in taking erroneous decisions and in issuing unauthorised Entitlement Certificates dated 29.04.2011 and 24.11.2011. The respondent State took an abnormally long time in realising the mistake on the part of its functionaries and took corrective measures only after the entire benefit had already been availed of inasmuch as the proceedings for recall were initiated only in the month of July 2017 which led to the impugned order dated 12.03.2018 and then, the Re-revised Entitlement Certificate was issued only on 02.04.201833.2. Apart from the above, it is also noticed that even when the Scheme envisaged interest at the rate of 18% per annum, in Form 2 filed by the appellants, undertaking was stated to repay the amount of subsidy, in case of availing excessive benefits or non- compliance with the provisions of the Scheme, with interest at the rate of 12% per annum (Vide the declaration extracted in paragraph 7.9.2.). Both the parties had proceeded with reference to the said undertaking furnished on behalf of the appellant and the same is required to be treated as a binding term of contract between them33.3. Hence, when availing of subsidy to the tune of 75% (and thereby availing 25% in excess) is not referable to any misrepresentation by the appellants and there is no allegation of breach of any of the conditions of RIPS-2003 by the appellants while availing such benefit, the respondent cannot be held entitled to demand interest at the rate stipulated in Clause 10 of RIPS-2003. However, and at the same time, when the appellant company had obtained undue advantage in monetary terms by availing 25% extra subsidy; and had given undertaking to refund any excessive benefit with interest at the rate of 12% per annum, in our view, the appellant company remains liable to refund the excess amount together with interest at the rate agreed upon, i.e., 12% per annum33.4. In the given set of facts and circumstances of this case, reliance on the decisions of this Court in India Carbon Ltd., J.K. Synthetics Ltd. and Maruti Wire Industries Pvt. Ltd. (supra), dealing the scheme of particular taxing statutes for charging of interest, does not make out a case of total waiver of interest because the fact remains that the appellant company had indeed availed excessive 25% subsidy under the non-statutory scheme and unequivocal undertaking was stated on its behalf to refund the excess amount together with interest @ 12% per annum33.5. It is also noticed that as per the submissions of the appellants, by way of recovery proceedings adopted by the State after the decision of High Court, entire of the principal amount of excess subsidy, i.e., Rs.15,96,37,794/- has already been recovered. In the totality of circumstances and relevant features of this case, in our view, interest of justice shall be served if the respondents are allowed interest at the rate of 12% per annum from the date of availing of excessive (25%) subsidy by the appellants and until recovery/payment.