|DATE:||(Date of pronouncement)|
|DATE:||June 17, 2013 (Date of publication)|
|Click here to download the judgement (mindtree_115JB_115O_SEZ_exemption_withdrawal.pdf)|
Withdrawal of MAT And DDT exemption to SEZs is not breach of promissory estoppel
As a corollary to the Special Economic Zones Act, 2005 (‘SEZ Act’), s. 115JB(6) and s. 115-O(6) was inserted to exempt SEZs from payment of minimum alternate tax (“MAT”) on book profits and tax on distributed profits [Dividend Distribution Tax (“DDT”)]. By the Finance Act, 2011, the exemption granted by s. 115JB(6) and 115-O(6) was made inoperative w.e.f. 1.4.2012 and 1.06.2011 respectively. The Petitioners claimed that they had established SEZs on the basis of the promise made by the Government that SEZs would enjoy an exemption from payment of MAT and DDT and that the amendments by the Finance Act 2011 withdrawing the said exemption was opposed to the Doctrine of Promissory Estoppel and the Doctrine of Legitimate Expectation. HELD by the High Court dismissing the Petition:
Firstly, it is the settled position of law that every tax exemption should have a sunset clause. As the exemption in s. 115JB(6) & 115-O(6) did not have a sunset clause, the flaw is removed by the impugned amendment. Secondly, the exemption created an inequality between SEZ companies and other companies which is now removed. Thirdly, the exemptions provided to SEZ companies resulted in erosion of tax base. Fourthly, the impugned amendment relates to fiscal policy of the state and any decision in the economic sphere is adhoc and experimental in its nature and the Government is well within it sovereign power to regulate the same. Lastly, the impugned amendments do not transgress any of the fundamental rights of the petitioners guaranteed under the Constitution. The legislature can never be precluded from exercising its legislative power by resort to the Doctrine of Promissory Estoppel. Since it is an equitable doctrine, it must yield when equity so requires. The courts would decline to enforce this doctrine if it results in great hardship to government and would be prejudicial to the public interest.