{"id":60631,"date":"1988-05-05T00:00:00","date_gmt":"1988-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/assistant-commissioner-of-vs-dharnendra-trading-company-etc-on-5-may-1988"},"modified":"2016-02-01T17:07:29","modified_gmt":"2016-02-01T11:37:29","slug":"assistant-commissioner-of-vs-dharnendra-trading-company-etc-on-5-may-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/assistant-commissioner-of-vs-dharnendra-trading-company-etc-on-5-may-1988","title":{"rendered":"Assistant Commissioner Of … vs Dharnendra Trading Company, Etc. … on 5 May, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Assistant Commissioner Of … vs Dharnendra Trading Company, Etc. … on 5 May, 1988<\/div>\n
Equivalent citations: 1988 AIR 1247, \t\t 1988 SCR (3) 946<\/div>\n
Author: M Kania<\/div>\n
Bench: Kania, M.H.<\/div>\n
           PETITIONER:\nASSISTANT COMMISSIONER OF COMMERCIAL TAXES (ASST.) DHARWAR\n\n\tVs.\n\nRESPONDENT:\nDHARNENDRA TRADING COMPANY, ETC. ETC.\n\nDATE OF JUDGMENT05\/05\/1988\n\nBENCH:\nKANIA, M.H.\nBENCH:\nKANIA, M.H.\nPATHAK, R.S. (CJ)\n\nCITATION:\n 1988 AIR 1247\t\t  1988 SCR  (3) 946\n 1988 SCC  (3) 570\t  JT 1988 (2)\t606\n 1988 SCALE  (1)973\n CITATOR INFO :\n RF\t    1991 SC  14\t (11)\n F\t    1992 SC 152\t (7)\n RF\t    1992 SC1075\t (8)\n\n\nACT:\n     Karnataka Sales  Tax Act,\t1957-Whether Government\t has\npower to  notify exemptions and reductions in levy of tax on\nsale or\t purchase  of  goods  under  section  8A  of-Whether\nGovernment can\twithdraw concessions in sales tax granted by\nits earlier order on ground of alleged misuse of concessions\nwithout proof  thereof-Against the  Doctrine  of  Promissory\nEstoppel.\n\n\n\nHEADNOTE:\n     The Government  of Karnataka  issued an order dated the\n30th June,  1969, sanctioning in-centives and concessions in\nthe matter  of sales  tax to  the entrepreneurs for starting\nnew industries\tin the\tMysore State.  On the  12th January,\n1977, the  Government  issued  another\torder,\tpresecribing\nceiling limits on the quantum of the sales tax or concession\nto  be\t granted.  Thereupon   several\tpersons\t filed\twrit\npetitions before  the High  Court, claiming  that  they\t had\nstarted\t new   industries  in\tthe  State  because  of\t the\nconcessions granted  to them  under the order dated the 30th\nJune, 1969 and they could not be deprived of the concessions\ngiven to  them by  the former  order as\t the said  grant  of\nconcessions constituted\t a promissory  estoppel against\t the\nGovernment and the Government was not entitled to go back on\nthe promise.  The High\tCourt upheld  the contention  of the\npetitioners and\t allowed the  writ  petitions.\tAgainst\t the\ndecision of the High Court, these appeals were filed in this\nCourt by  the Assistant Commissioner of Commercial Taxes and\nothers.\n     Dismissing the appeals, the Court,\n^\n     HELD:  The\t  contention  of  the  appellants  that\t the\ndoctrine of  Promissory Estoppel  was not applicable in this\ncase because  the concessions  granted under the order dated\n30th June,  1969 were  being misused, could not be accepted.\nThere was  nothing to  show that  any misuse was made of the\nconcessions. A\trecital in  the order  dated  12th  January,\n1977, regarding\t misuse of  the concessions,  could  not  by\nitself establish that the concessions were misused. [949F-G]\n     There was\tno substance  in the  appellants' contention\nthat the\n947\nconcessions granted by the order dated 30th June, 1969, were\nof no legal effect of the contention that the said order was\nultra vires and bad in law, as there was no provision in the\nKranataka Sales\t Tax Act  (\"the said  Act\") under  which any\nrefund could  be granted,  and the  State Government  had no\nauthority  to\tprovide\t for  refunds.\tThough\tthe  benefit\nregarding sales tax granted to the new industries was by way\nof refunds  of sales  tax paid to the extent provided in the\norder, in  effect, the\tbenefit granted was in the nature of\nan exemption  from the payment of the sales tax or reduction\nin the\tsales tax  liability to\t the extent  stated  in\t the\nOrder. The  mere fact  that the order of 30th June, 1969 did\nnot specify  the power\tunder which it was issued would make\nno difference  because such  a power was there in Section 8A\nof the\tsaid Act.  Where the  source of power under which an\norder is  issued is not stated in the order but can be found\non the\texamination of the relevant Act, the exercise of the\npower must  be attributed  to that  source. The appeals were\ndismissed. [951C-E]\n     Union of  India v.\t M\/s Indo  Afghan Agencies  Limited,<\/a>\n[1968] 2  S.C.R. 366;  Century\tSpinning  and  Manufacturing\nCompany Limited\t & Anr.\t v. The Ulhasnagar Municipal Council\nand Anr.,<\/a>  [1970] 3  S.C.R. 854;  M s Motilal Padampat Sugar\nMills Company  Pvt. Ltd. v. State of Uttar Pradesh and Ors.,\nA.I.R.<\/a> 1979  S.C.621 and  State of  Bihar and  Anr. v.\tUsha\nMartin Industries Ltd.,<\/a> [1987] 65 STC 430, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Apeal Nos. 2204-47
\nof 1980.\n<\/p>\n
     From the  Judgment and  Order dated  15.10.1979 of\t the
\nHigh Court of Karnataka in W.A. No. 1101 to 1144 of 1979.\n<\/p>\n
     P.R. Ramasesh for the Appellants.\n<\/p>\n
     T.S. Krishnamurthy, Vineet Kumar and H. Raghavendra Rao
\nfor the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by.
\n     KANIA, J.\tThese appeals  arise from  the decision of a
\nDivision Bench\tof the\tHigh  Court  of\t Karnataka  in\tWrit
\nAppeals Nos.  1101 ‘to\t1144 of\t 1979. It  appears that\t the
\nGovernment  of\tKarnataka  decided  to\tadopt  a  policy  to
\nencourage rapid industrialisation. An Order No. CI 58 FMI 69
\ndated 30th  June, 1969\twas issued  which recited  that\t the
\nGovernment,  namely,   the  Government\t of  Karnataka\t was
\ncommitted
\n948<\/span>
\nto  a\tpolicy\tof  rapid  industrialisation  and  that,  in
\npursuance thereof,  the Government  had\t on  30th  November,
\n1966, issued directions indicating the incentives that would
\nbe given  to entrepreneurs  starting new  industries in\t the
\nMysore State.  The material  part of the said order, for our
\npurpose, runs thus:\n<\/p>\n
\t  “Consequently, the  Governor of  Mysore is pleased
\n\t  to   sanction\t  the\tfollowing   incentives\t and
\n\t  concessions to  the entrepreneurs for starting new
\n\t  industries in Mysore State:\n<\/p><\/blockquote>\n
\t  (1) Sales Tax-A cash refund will be allowed on all
\n\t  Sales Tax  paid by a new industry on raw materials
\n\t  purchased by\tit for the first 5 (five) years from
\n\t  the  date   the  industry  goes  into\t production,
\n\t  eligibility to the concessions being determined on
\n\t  the basis  of a  certificate to  be issued  by the
\n\t  Department of Industries and Commerce ……….”<\/p><\/blockquote>\n
     By an  order dated 11th August, 1975, the procedure was
\nprescribed for\tobtaining the  concessions given  under\t the
\norders referred\t to earlier.  On  12th\tJanuary,  1977,\t the
\nGovernment of  Karnataka issued\t another order which recited
\nthat the  reasons for making the said order of 12th January,
\n1977 were  that the  scheme of\tconcessions adopted  by\t the
\nGovernment earlier  had given  room for many types of misuse
\nand the earlier orders had not prescribed any ceiling limits
\nor restrictions\t on the\t quantum of  refund of\tsales tax or
\nconcessions  to\t be  granted.  The  said  order\t dated\t12th
\nJanuary, 1977, inter alia, provided as under:\n<\/p>\n
\t  “(i) The  concession of refund of sales tax on raw
\n\t  materials  used   by\tnew  enterprises  should  be
\n\t  limited to 10 per cent of the cost of fixed assets
\n\t  per year,  thus not  exceeding the total of 50 per
\n\t  cent over  a period  of five\tyears for  which the
\n\t  concession is\t available. Where  the annual  sales
\n\t  tax paid on raw materials is less than 10 per cent
\n\t  of the  cost of  the fixed assets according to the
\n\t  original value,  the concession will be limited to
\n\t  the actual sales tax paid……….”<\/p><\/blockquote>\n
     Several persons  claimed  that  they  had\tstarted\t new
\nindustrial units  in the State on the assurances extended or
\nbecause of  the concessions  granted to\t them,\tinter  alia,
\nunder the  said order dated 30th June, 1969. They filed writ
\npetitions before  the High  Court of Karnataka claiming that
\nthe industrial\tundertakings started between 30th June, 1969
\nwhen the  order dated  12th June,  1969 came into effect and
\nbefore
\n949<\/span>
\nthe order  dated 12th  January, 1977 was issued could not be
\ndeprived of  the concessions  given to\tthem by\t the  former
\norder  as  the\tsaid  grant  of\t concessions  constituted  a
\npromissory estoppel  against the  Government on the basis of
\nwhich they  had acted  by starting  new industries requiring
\ninvestment of  considerable funds and the Government was not
\nentitled to  go back  or that promise as it had sought to do
\nby the\torder dated  12th January,  1977. A  learned  Single
\nJudge of  the Karnataka\t High Court,  before whom these writ
\npetitions were filed, upheld the aforesaid contention of the
\npetitioners urged  before him  relying mainly on the rulings
\nof this Court in Union of India v. M\/s. Indo Afghan Agencies
\nLimited,<\/a>  [1968]   2  S.C.R.   366;  Century   Spinning\t and
\nManufacturing Company  Limited\t&  Anr.\t v.  The  Ulhasnagar
\nMunicipal Council & Anr.,<\/a> [1970] 3 S.C.R. 854 and the ruling
\nin M\/s.\t Motilal Padampat  Sugar Mills\tCompany Pvt. Ltd. v.
\nState of  Uttar Pradesh & Ors., A.I.R.<\/a> 1979 S.C. 621. In the
\nconcluding  portion  of\t his  judgment,\t the  learned  Judge
\nclarified that\the had\tnot examined  the correctness of the
\nindividual claims  made by  the petitioners  and that  these
\nclaims\twould\thave  to   be  examined\t  by  the  competent
\nauthorities. He\t further clarified that the order dated 12th
\nJanuary, 1977  would undoubtedly apply to industries started
\nafter that  date. The  learned Trial  Judge allowed the writ
\npetitions and  granted relief  on the basis set out earlier.
\nAn  appeal   preferred\tby  the\t Assistant  Commissioner  of
\nCommercial Taxes, Dharwar, Deputy Commissioner of Commercial
\nTaxes and  the Government  of Karnataka\t before\t a  Division
\nBench of the Karnataka High Court was dismissed by the Court
\nwhich agreed  with the reasoning of the learned Trial Judge.
\nIt is from this decision that the present appeals arise.\n<\/p>\n
     The first\tcontention of  the learned  counsel for\t the
\nappellants is  that the\t doctrine of Promissory Estoppel was
\nnot applicable\tin the\tpresent case because it was found by
\nthe Government\tof Karnataka  that the\tconcessions  granted
\nunder the  said order  dated  30th  June,  1969\t were  being
\nmisused and  undue advantage was being taken of the same. It
\nwas submitted  by him  that in view of this, it would not be
\nproper to  hold\t the  Government  to  the  promises  or\t the
\nassurances it  had given  under the  said order\t dated\t30th
\nJune, 1969.  We are afraid it is not possible to accept this
\nsubmission. No counter-affidavit was filed by the appellants
\nbefore the  Trial Court\t in the\t writ petition.\t Beyond\t the
\nstatement of  counsel, there  is nothing  to show  that\t any
\nmisuse was  made of  these concessions\tor  undue  advantage
\ntaken of the same. It is true that the preamble to the order
\ndated 12th  January, 1977  does recite\tthat the concessions
\ngiven by  the earlier order had given room for many types of
\nmisuse but such a recital by itself cannot establish
\n950<\/span>
\nthat the  concessions were,  in fact,  misused. If that were
\nso, it\twas the\t duty of  the Government  and the  concerned
\nauthorites to file a counteraffidavit and place the relevant
\nfacts establishing  the misuse\tbefore the  Court. This they
\nhave totally  failed to\t do. It\t is well settled that if the
\nGovernment wants  to resile  from a  promise or an assurance
\ngiven by  it on\t the ground  that undue\t advantage was being
\ntaken or  misuse was  being made  of the concessions granted
\nthe Court  may permit  the Government  to do  so but  before
\nallowing the  Government to  resile from  the promise  or go
\nback on\t the assurance\tthe Court would have to be satisfied
\nthat allegations  by the  government about misuse being made
\nor undue  advantage being  taken of the concessions given by
\nit were\t reasonable well  established. In  the present case,
\nthere is  nothing on record to show that any such misuse was
\nbeing made  or undue advantage taken of the said concessions
\nby the\tnewly established  industries. The  Government\thad,
\ntherefore, failed  to establish\t the requisite ground or the
\nbasis of  which it  might be  allowed  to  go  back  on\t its
\npromise. The first submission of the learned counsel for the
\nappellants must, therefore, fail.\n<\/p>\n
     The  next\t submission  of\t  learned  counsel  for\t the
\nappellants was\tthat the  concessions granted  by  the\tsaid
\norder dated 30th June, 1969 were of no legal effect as there
\nis no statutory provision under which such concessions could
\nbe granted  and the order of 30th June, 1969 was ultra vires
\nand bad\t in law.  We totally  fail to  see how\tan Assistant
\nCommissioner or\t Deputy Commissioner  of Sales\tTax who\t are
\nfunctionaries of  a State  can say that a concession granted
\nby the\tState itself  was beyond  the powers of the State or
\nhow the\t State can  say so  either. Moreover,  if  the\tsaid
\nargument of  learned counsel is correct, the result would be
\nthat even  the second  order of\t 12th January, 1977 would be
\nequally invalid\t as it\talso grants  concessions by  way  of
\nrefunds, although  in a\t more limited manner and that is not
\neven the case of the appellants.\n<\/p>\n
     Although, we  are of  the view  that the contention set
\nout in the foregoing paragraph is not open to the appellants
\nat all,\t we propose to examine the merits of that contention
\nbecause, in  our view,\teven on merits the contention raised
\nmust be\t rejected. The ground on which it was submitted that
\nthe said  order of 30th June, 1969 was invalid is that there
\nis no  provision under\tthe Karnataka  Sales Tax  Act,\t1957
\n(referred to  hereinafter as “the said Act”) under which any
\nrefund\tcould  be  granted.  The  learned  counsel  for\t the
\nappellants pointed out that only relevant provision, in this
\nconnection, is\tSection 8A  of the said Act and that Section
\nempowers the State Government to notify exemp-\n<\/p>\n
951<\/span><\/p>\n
tions and  reductions in the levy of tax on sale or purchase
\nof  goods  that\t are  made  exigible  under  the  provisions
\ncontained in Chapter-3 of the said Act. Section 8A expressly
\nempowers  the  State  Government  to  grant  exemptions\t and
\nreductions. Under  the said  order dated  30th June, 1969 it
\nhas been  inter alia  provided that  a cash  refund will  be
\nallowed on  all sales  tax paid\t by a  new industry  on\t raw
\nmaterials purchased  by it for the first five years from the
\ndate the  industry goes\t into production  as set out in said
\nthe Order.  The\t only  submission  made\t on  behalf  of\t the
\nappellants is  that since  the benefit\tgiven  is  called  a
\nrefund, it cannot be said to be an exemption or reduction as
\npermitted by  Section 8A. In our view, there is no substance
\nin this\t submission at all. In order to test the validity of
\nthe order  dated  30th\tJune,  1969,  one  has\tto  see\t the
\nsubstance of  the concession granted under the order and not
\nmerely certain\twords used  out\t of  context.  Although\t the
\nbenefit regarding sales tax granted to the new industries is
\nby way\tof refunds  of sales tax paid to the extent provided
\nin the\tOrder, it  is clear  that, in  effect,\tthe  benefit
\ngranted is in the nature of an exemption from the payment of
\nthe sales tax or reduction in the sales tax liability to the
\nextent stated  in the  order. In  view of  this, there is no
\nsubstance  whatever   in  the\tcontention  that  the  State
\nGovernment had\tno authority  to provide  for the  grant  of
\nrefunds. Again,\t the mere  fact that the order of 30th June,
\n1969 did  not specify  the power  under which  it was issued
\nwill make  no difference  because such\ta power\t is  clearly
\nthere in  Section 8A  and where\t the source  of power  under
\nwhich it  is issued  is not  stated in\tan order  but can be
\nfound on  the examination  of the relevant Act, the exercise
\nof the\tpower must  be attributed to that source. The second
\nsubmission of  the learned  counsel for the appellants must,
\nalso, therefore, be rejected.\n<\/p>\n
     Although at  one stage  a faint  doubt  was  raised  by
\nlearned\t counsel  for  the  appellants\tas  to\twhether\t the
\nDoctrine of  Promissory Estoppel  could be  regarded as good
\nlaw now,  he conceded that doctrine must be regarded as good
\nlaw in view of the recent decision of this Court in State of
\nBihar and  Anr. v.  Usha Martin\t Industries Ltd.,<\/a>  [1987] 65
\nSTC, 430  where a  Division Bench  comprising three  learned
\nJudges of this Court upheld and applied that doctrine.\n<\/p>\n
     In the  result, there  is no  merit in  the appeals and
\nthey are dismissed with costs.\n<\/p>\n
S.L.\t\t\t\t     Appeals dismissed.\n952<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Assistant Commissioner Of … vs Dharnendra Trading Company, Etc. … on 5 May, 1988 Equivalent citations: 1988 AIR 1247, 1988 SCR (3) 946 Author: M Kania Bench: Kania, M.H. PETITIONER: ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (ASST.) DHARWAR Vs. RESPONDENT: DHARNENDRA TRADING COMPANY, ETC. ETC. DATE OF JUDGMENT05\/05\/1988 BENCH: KANIA, M.H. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-60631","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAssistant Commissioner Of ... vs Dharnendra Trading Company, Etc. ... on 5 May, 1988 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/assistant-commissioner-of-vs-dharnendra-trading-company-etc-on-5-may-1988\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Assistant Commissioner Of ... vs Dharnendra Trading Company, Etc. ... on 5 May, 1988 - 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