M/S. Ahinsha Chemicals Ltd. Vs the State of Assam and 5 Ors.

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GAHC010145842018

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2025:GAU-AS:2707

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4507/2018

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M/S. AHINSHA CHEMICALS LTD.

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HAVING ITS REGD. OFFICE AT - 707, N.T. ROAD, NALBARI-781335, ASSAM AND ITS FACTORY AT VILL. PUB SARIAHTALI, P.O. MILANPUR, DIST. NALBARI-781337, ASSAM REP. BY ITS AUTHORIZED SIGNATORY SRI PAWAN KUMAR JAIN, R/O. L.N.B. ROAD, NALBARI TOWN, NALBARI781335.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, FINANCE (TAXATION) DEPTT., DISPUR, GUWAHATI-781006

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2:THE COMMISSIONER OF TAXES

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ASSAM KAR BHAWAN DISPUR GUWAHATI-781006

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3:THE SUPDT. OF TAXES

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NALBARI P.O. NALBARI-781335 ASSAM.

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4:THE COMMISSIONER OF INDUSTRIES AND COMMERCE

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ASSAM UDYOG BHAWAN BAMUNIDAIDAM GUWAHATI-781021

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5:THE ADDL. DIRECTOR (US)

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OFFICE OF THE COMMISSIONER OF INDUSTRIES AND COMMERCE ASSAM UDYOG BHAWAN BAMUNIMAIDAM GUWAHATI-781021

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6:THE GENERAL MANAGER

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DISTRICT INDUSTRIES AND COMMERCE CENTRE NALBARI P.O. NALBARI-781335

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Advocate for the Petitioner : DR B P TODI, MR. N J MEDHI,MR. S U AHMED,MR. A NATH,DR ANKIT TODI

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Advocate for the Respondent : DR. B AHMED, MR. KALITA, SC, INDUSTRIES & COMMERCE,MR. B CHOWDHURY, SC, FINANCE & TAXATION DEPT.,SC, TAXES

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BEFORE

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HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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13-03-2025

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1. Heard Dr. A. Todi, learned counsel for the petitioner and Mr. B. Choudhury, learned Standing counsel, Finance and Taxation Department, Assam for the respondent Nos. 1 to 3. Also heard Mr. N. Kalita, learned Standing counsel, Industries and Commerce Department, Assam for the respondent Nos. 4 to 6.

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2. The present writ petition is filed with a prayer to declare Rule 57 A of the Assam Value Added Tax Rules, 2005 (hereinafter referred to as the Rules, 2005) as ultravires. The consequential relief sought for is setting aside an order dated 21.11.2017

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passed by the Commissioner of Taxes, Assam, Dispur whereby the Commissioner of Taxes, Assam took a stand that as per the provision of the Assam Industries (Tax Exemption) Scheme, 2015 (hereinafter referred to as the Scheme, 2015), ‘tea industries’ are in the list of non-eligible industries and not treated as manufacturing activity as per the provision of Rule 57 A of the Rules, 2005 .Thus, tea industries were not granted the benefit under the Scheme, 2015 for not being treated as manufacturing activity as per Rule 57 A of the Rules, 2005.

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3. Though the petitioner preferred a representation on 22.12.2017 seeking review of the letter dated 21.11.2017, however, the same was rejected by the Commissioner of Taxes, Assam Dispur by its communication No. CTS-76/2017/40 dated 12.02.2018.

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4. In the meantime, Rule 57 A of the Rules, 2005 was held to be ultra-vires by the Division Bench of this Court in WP(C) No. 5495/2015 (Assam Roofing Ltd. Vs. the State of Assam & 2 others) and said order was passed on 10.09.2015.

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5. However, may be for ignorance or any other reasons, the impugned order dated 21.11.2017 was issued relying upon the provision of Rule 57 A of the Rules, 2005 which was already struck down prior to the said date. It is seen that striking down of the provision of Rule 57 A of the Rules, 2005 was also not brought to the notice of the Commissioner of Taxes, Assam, Dispur in the representation dated 22.12.2017.

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6. In the aforesaid context, the learned counsel for the petitioner submits that as the Rule 57 A of the Rules, 2005 has already been struck down, the petitioner’s representation requires a fresh consideration.

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7. Mr. Choudhury, learned Standing counsel, Finance and Taxation Department, Assam also submits that as the fundamental challenge is against the communication dated 21.11.2017 and by that time, the aforesaid provision was already struck down by the Division Bench in Assam Roofing Ltd. (supra), the matter may be relegated to the Commissioner of Industries and Commerce, Assam to consider the case of the

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petitioner for the grant of benefit under the Scheme, 2015.

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8. This Court is also of the opinion that non-grant of benefit is based on the prescription made under Rule 57 A of the Rules, 2005, therefore, when such provision is removed from the Statue Book by a judicial pronouncement, the entire matter needs to be considered afresh without taking note of prescription under Rule 57 A, however, authorities shall be at liberty to take note of other relevant factors as prescribed under the Scheme 2015 as well as the provisions prescribed under the Industrial & Investment Policy of Assam, 2014 (hereinafter referred to as Investment Policy, 2014.

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9. Accordingly, the petitioner is permitted to file a fresh representation along with a copy of this order as well as a copy of the determination made by the Division Bench in the case of Assam Roofing Ltd. (supra). On receipt of such representation, the authorities shall consider the case of the petitioner on the basis of the Scheme, 2015 & the Investment Policy, 2014 and the provision as prescribed under the order dated 10.09.2015 within a period of 3 (three) months.

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10. With the above observation and direction, this writ petition stands disposed of.

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JUDGE

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M/S. Ahinsha Chemicals Ltd. v. the State of Assam and 5 Ors.

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