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2017 Supreme(Guj) 482
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah and B.N. Karia, JJ.
Reliance Industries Limited and Others – Appellants
Versus
State of Gujarat and Others – Respondents
Special Civil Application No. 7020 of 2008
Decided On : 02-03-2017
For the Appellant : Megha Jani.
For the Respondent: Manisha Lavkumar.
Headnote:
Constitution of India, 1950 – Article 226 – Companies Act, 1956 –Sections 391 to 394 –Gujarat Value Added Tax Act, 2003 –Section 5(2) –Gujarat Sales Tax Act, 1969 – Mines and Mineral Act – Tax Exemption – By way of this petition under Article 226 of Constitution of India, petitioners have prayed for an appropriate writ, direction and order to quash and set aside impugned decision of respondents, in declaring Phase-II of Gandhar Complex as ineligible for Tax Exemption under scheme published by Government Resolution and to direct respondents to make available to petitioner No. 1 benefit of Tax Exemption under said scheme – It is also prayed to declare that clause 9(c) of Incentive Scheme is not applicable to petitioner No. 1 and in alternative as ultra vires and hence, void ab initio – Held, natural gas cannot be said to be mineral/local mineral resource for which any permit/license is required under any of provisions of the Mines and Mineral Act or Rules, impugned decision to deny benefit of Sales Tax incentive under Government Resolution to petitioner for Phase-II Project cannot be sustained and same deserves to be quashed and set aside and matter is required to be remanded to State Government for its fresh decision in light of observations made hereinabove and to grant benefit of Incentive Scheme to the petitioner for Phase-II Project of Gandhar Complex if all other conditions of Government Resolution are satisfied –impugned decision of respondents in rejecting claim of petitioner for Sales Tax incentive under Government Resolution for Phase-II Project of Gandhar Complex is hereby quashed and set aside – Petition Allowed (Paras 6.8,7,)
M.R. Shah, J.
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned decision of the respondents, in declaring Phase-II of Gandhar Complex as ineligible for Tax Exemption under the scheme published by the Government Resolution dated 11.09.1995 viz. "Capital Investment Incentive to Premier/Prestigious Units Scheme, 1995-2000" (hereinafter referred to as "Incentive Scheme") and to direct the respondents to make available to the petitioner No. 1 the benefit of the Tax Exemption under the said scheme in respect of Phase-II of Gandhar Complex. It is also prayed to declare that clause 9(c) of Annexure-B to the Incentive Scheme is not applicable to the petitioner No. 1 and in the alternative as ultra vires and hence, void ab initio.
2. Facts leading to the present Special Civil Application and so pleaded in the petition are as under:
"2.1 That Indian Petrochemicals Corporation Limited (hereinafter referred to as "IPCL") was a company duly constituted and registered in consonance with the provisions embodied in the Companies Act, 1956. The IPCL was a Government of India Undertaking at the time of its incorporation and, thereupon, IPCL continued as a Government of India Undertaking till in the month of June 2002 or thereabout, the Government of India decided to disinvest its shareholding as a major shareholder in IPCL and, thereupon, in furtherance thereof entered into a Share Purchase Agreement with the petitioner No. 1 herein for the purpose of causing transfer of 46% of its shareholding in the setup of IPCL to a subsidiary of petitioner No. 1, in the name and style of "Reliance Petro-Investments Limited." That subsequent to the aforesaid, pursuant to the order dated 12.06.2007 passed by the Bombay High Court, a scheme of amalgamation of IPCL with the petitioner No. 1 herein came to be duly sanctioned in consonance with the provisions embodied in sections 391 to 394 of the Companies Act, 1956 and as a result thereof, IPCL came to be merged with the petitioner No. 1 herein - Reliance Industries Limited (hereinafter referred to as "RIL"). Thus, the petitioner No. 1 - RIL stepped into the shoe of IPCL. That the respondent No. 1 - State of Gujarat through its Industries and Mines Department, promulgated a Resolution dated 11.09.1995 bearing No. INC/1095/2000/(3)/1, by virtue of which, for the purpose of implementing the new industrial policy, referred to therein as evolved by the State Government for accelerating the development of the backward areas of the State of Gujarat by creating large scale employment opportunities, Incentive Scheme, inter-alia, providing incentive, in the form of Exemption from Sales Tax to industrial units for setting up industrial complex/project in the backward areas, defined therein, came to be published.
2.2 That in response to the aforesaid Government Resolution/Incentive Scheme, with a view to avail thereunder the benefit of incentive in the form of Exemption from Sales Tax, IPCL moved an application before the respondent No. 2 - Industries Commissioner, State of Gujarat on 17.11.1995, inter-alia, pointing out that grass-root Mega Industrial Complex, near Gandhar (hereinafter referred to as "Gandhar Complex") proposed to be set up by IPCL at an approximate cost of 3500 Crores would qualify for the purpose of Exemption from Sales Tax in the form of an incentive pursuant to the Incentive Scheme and hence, IPCL be accordingly registered as a Premier Industrial Unit.
2.3 Subsequent to the aforesaid, the application of the IPCL in respect of said Gandhar Complex came to be scrutinized and processed by the office of the Industries Commissioner, State of Gujarat. That a provisional eligibility certificate dated 01.01.2000, under the nomenclature of "Eligibility Certificate for Sales Tax Incentive" came to be issued by the Office of the respondent No. 2, inter-alia, declaring IPCL a
