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2022 Supreme(Cal) 632
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Ankit Metal And Power Limited And Another - Appellant
Versus
West Bengal Industrial Development Corporation Limited And Others - Respondent
WPO No. 107 of 2021
Decided On : 21-06-2022
Mr. Arik Banerjee, Mr. Nilay Sengupta, for the Appellant; Mr. T.M. Siddiqui, for the Respondent
The Nodal Authority, as a paying agency for the government, does not have the authority to withhold disbursal of incentive amounts when the liability has been admitted by the authorities.
Headnote:
WBIPS 2005 - Industrial Development - WBIS 2004, WBIPS 2005 - The court discussed the West Bengal Industrial Scheme, 2004 (WBIS 2004) and the West Bengal Industrial Power Incentive Scheme, 2005 (WBIPS 2005). The court highlighted the admission of liability by the authorities under the schemes and emphasized that the Nodal Authority did not have the authority to withhold disbursal of the incentive amount, as it was merely a paying agency for the Government of West Bengal.
Fact of the Case:
The petitioner became eligible for incentive schemes under WBIS 2004 and WBIPS 2005 for setting up an industrial unit. The authorities admitted the liability to pay the incentive amount but failed to disburse it to the petitioner.
Finding of the Court:
The court found that the authorities had repeatedly admitted the petitioner's dues under the incentive schemes. It emphasized that the Nodal Authority did not have the authority to withhold disbursal of the incentive amount.
Issues: Admission of liability by the authorities, refusal to disburse incentive amount, and the authority of the Nodal Agency to withhold disbursal.
Ratio Decidendi: The court held that the Nodal Authority, being a paying agency for the Government of West Bengal, did not have the authority to withhold disbursal of the incentive amount, especially when the liability had been admitted by the authorities.
Final Decision: The court allowed the petition, directing the respondents to disburse the balance amount under the WBIPS 2005 Incentive Scheme to the petitioner within a month.
JUDGMENT
The Court:
1. The respondent no.1 is a Government Company, acting as a Nodal Agency of the Government of West Bengal for industrial development in the State.
2. Pursuant to setting up of a power generation and manufacturing unit at Jorehira, Bankura, West Bengal in 2007, the petitioner no.1 became eligible for several incentive schemes prescribed by the Government of West Bengal as per the West Bengal Industrial Scheme, 2004 (for short 'WBIS 2004').
3. In 2005, the State had also assured the power incentive scheme to manufacturers having an industrial unit where power is one of the major cost components of the same under the West Bengal Industrial Power Incentive Scheme, 2005 (in brief 'WBIPS 2005').
4. The petitioner no.1 invested Rs.44 crore in setting up the industrial unit, which was duly registered. Under the scheme of 2004, a unit can avail subsidy under the WBIS 2004, though not more than the actual fixed capital investments made in their unit or the expansion unit.
5. Subsequently, on request from the petitioners, the Chief Engineer, Central Commercial Department, WBSEDCL duly recommended that the petitioner is entitled to an incentive amount under WBIPS, 2005 for the period April, 2010 to October, 2010 during the eligibility period October 15, 2005 to October 14, 2010 for a sum of Rs.4,08,02,666.21p, on November 23, 2012. The respondent requested the petitioner by a letter dated April 30, 2014, to submit the quantum of benefits availed by the petitioner for a period of five years towards waiver of electricity duty under the said Eligibility Certificate along with supporting documents. The petitioner no.1 duly submitted a statement to that effect by a covering letter dated December 3, 2014. Waiver had been availed in respect of electricity duty for having an aggregate sum of Rs.6,20,30,387/-.
6. The respondent-authority admitted the eligibility of the petitioners to have a refund of such electricity duty to the extent of Rs.4,08,02,666.20p, still remaining unpaid. Such liability was displayed on the website of the respondent-authority.
7. Hence, it is evident that the liability to pay of the respondent-authority was, at all relevant points of time, admitted by the respondents. In fact, the debt in respect of the petitioners, having been displayed as indicated above, clearly indicated that the Government of West Bengal transmitted the amount to the respondents for due disbursement to the petitioners. However, the petitioners alleged that the respondents have not disbursed such amount in favour of the petitioners till date.
8. Subsequently, a demand justice was issued by the petitioner and a notice was issued at the behest of the petitioners under Rule V of the Insolvency and Bankruptcy Code, 2016 upon the respondent- authority, which was duly accepted by the respondent-authority on March 5, 2018. However, even thereafter the respondent-authority has not disbursed the said amount, despite having received the requisite amount for the purpose of disbursal to the petitioner no.1.
9. In reply to the said notice under Rule V, dated January 2, 2018 (actually issued on March 2, 2018), the respondent no.1 responded vide their letter dated March 20, 2018, disclosing that they shall not pay the amount of Rs.1,94,30,867/- for the following reasons:
(a) The respondent no.1 had adjusted a sum of Rs. 1,94,30,867/- against a Bridge Loan and interest accrued thereon; and
(b) A sister concern of the applicant, namely M/s. Rohit Ferotech Limited, enjoyed excess subsidies from the Government of West Bengal.
10. It is pointed out by learned counsel for the petitioners that, on a previous occasion, the respondent-authority had, on the same grounds, refused to honour the claim of the petitioner no.1 on account of the subsidies under WBIS 2000.
11. However, upon the petitioner no.1 moving this Court under Article 226 of the Constitution of India, giving rise to WP 1014(W) of 2020, this Court had, vide order dated February 14, 2020, allowed the said
