JUDGMENT
M.C. Agarwal, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated 25th August. 1998, passed by the Khandsari inspector-cum-Assessing Officer whereby he rejected the petitioner’s option exercised by him in terms of Section 3 (I-a) of the U. P. Sugarcane (Purchase Tax) Act. 1961 (hereinafter referred to as ‘the Act’) read with Rule 13A of the U. P. Sugarcane (Purchase Tax) Rules. 1961 ; an assessment order dated 7th September. 1998 and the appellate order dated 25th September. 1998.
2. Counter and rejoinder-affidavits have been exchanged.
3. I have heard Sri M. K. Gupta learned counsel for the petitioner and Sri S. D. Singh, learned counsel for the respondents.
4. The petitioner owns a sugar unit and was liable to pay sugarcane purchase tax under the aforesaid Act. Section 3 (1-a) of the Act provides that the State Government may prescribe the quantity of sugarcane which shall be assumed for the purposes of the proviso to subsection (1), to have been purchased by the owners of different categories of units having regard to the crushing capacity of the units and other relevant factors. Sub-section (1b) of Section 3 provides that the option shall be exercised by the owner of a unit by such date and in such form as may be prescribed and shall relate to the whole of an assessment year and the option once exercised shall be Irrevocable for that year. Rule 13A then prescribes the manner in which the option has to be exercised and Schedule I to the Rules prescribes the category of the power crusher and the average monthly assumed purchase of sugarcane. The said Schedule is as under:
SCHEDULE I
(Rule 13 A)
Category of the power-crusher
Size of power-crusher in category
Hydraulic Non-Hydraulic spring loaded
device.
Average monthly assumed purchase or
sugarcane (quintals) as per capacity.
(1)
(2)
(3)
(4)
A.
Not exceeding 20 cm. x 25.5
Hydraulic non-Hydraulic
3.500
B.
Exceeding 20 cm. x 25.5 cm. but not
exceeding 25.5 cm. x 30.5 cm.
Ditto
4,500
c.
Exceeding 25.5 cm. x 30.5 cm. but not
exceeding 28 cm. x 35.5 cm.
Non-Hydraulic Hydraulic or
non-Hydraulic with spring loaded device.
7,000 11,500
D.
Exceeding 28.0 cm. x 35.5 cm. but not
exceeding 33
Non- Hydraulic Hydraulic or
non-Hydraulic with spring loaded device.
12.500 18.000
E.
Exceeding 33 cm. x 46 cm.
Non-Hydraulic Hydraulic or
non-Hydraulic with spring loaded device.
21,000 35.000
Note.–(a) For every extra Meerut type bel add 800 quintals to the quantity shown in column 4 above.
(b) For every extra Rohikhand type bel add 1,600 quintals to the quantity shown in the column 4 above.
(c) The above specification relates to a unit comprising one power-crusher only.
(d) Where a unit compromise more’ than one power-crusher of the same category, the specification given in column 4 shall
apply in such multiples thereof as there are power-crushers set-up in the unit.
(e) Where a unit comprises more than one power-crusher of different categories, the quantity of assumed purchases of cane shall be worked out separately for each category according to column 4 above and the quantities thus worked out shall be totalled.”
5. Admittedly, the petitioner exercised an option in accordance with the Rules mentioning the
machinery installed by it as a power-crusher 25.5 cm. 30.5 cm, six rollers non-hydraulic non-sulphitation, seven Meerut type bhattis and one power driven centrifugal machine. The said option was exercised for the year 1996-97. The khandsari inspector-cum-assessing officer inspected the unit of the petitioner on 4.2.1997 and found that the petitioner had installed a power crusher of 25.5 cm, x 30.5 cm., six rollers non-hydraulic spring loaded device non-sulphitation with seven Meerut type bhattis and a centrifugal power driven machine. The said khandsari inspector-cureassessing officer did not find anything objectionable and allowed the petitioner to pay the sugarcane purchase tax according to option exercised by it. However, on the change of the officer some times in August, 1998, the impugned order dated 25th August, 1998, was passed observing that the machinery installed was different than what was mentioned in the option. The option was, therefore, rejected and consequently an assessment order dated 7th September, 1998, was passed assessing the purchase tax at Rs. 1.23,300 as against Rs. 36,450 paid by the petitioner. The petitioner’s appeal against the said assessment order was dismissed. The petitioner’s contention is that the order dated 25th August, 1998, was passed without giving it an opportunity of hearing and that the machinery installed was the same as mentioned in the option and there was no cause for rejecting the option and making an assessment.
6, in the counter affidavit, it is stated that the assessing officer-cum-khandsari inspector who passed the Impugned order was appointed in the year 1997-98 and it was then that it was detected that a different machinery was installed and that there was no time limit prescribed under the U. P. Sugarcane (Purchase Tax) Act, 1961, to reject the option. According to the respondents, the option exercised in Form XIII can be rejected at any time if it is found that the different kind of machinery is being used and installed in the factory than what was indicated in
Form XIII. According to the respondents the machine installed by the petitioner had a spring device while no such device was mentioned in the option.
7. I have reproduced the Schedule specified under Rule 13A for the purposes of showing what type of machines, i.e., power-crushers are mentioned therein. Admittedly, the petitioner’s power-crusher was of the
Size 25.5 cm. x 30.5 cm. and it fell in category B, in the title of column 3 “hydraulic non-hydraulic spring loaded device” is specifically mentioned but as against items A and B, it is not so mentioned, meaning thereby that a power-crusher falling in categories A and B could also have a spring loaded device. Therefore, the mere fact that in the option, it was not mentioned that the power-crusher to be installed by the petitioner would have a spring loaded device was immaterial because the Schedule itself contemplates that even power crushers falling in Categories A and B could have spring loaded device. Therefore, the contention of the respondents that a different type of machinery was installed is incorrect, in any case, since none of the authorities have mentioned that the spring loaded device substantially increases the crushing capacity of the power-crusher vis-a-vis a machinery that did not have such device, the installation of a spring loaded device could not entitle the respondents to reject the option and to make an assessment.
8. The contention of the respondents that an option can be rejected at any time is untenable. If such a contention is accepted and khandsari inspector is allowed to open up old matters, it would fling the gates of corruption wide open and make the life of a tax payer absolutely insecure’. Form XIII in which an option is exercised requires the dealer only to mention the number of power-crusher with size, it does not require the owner of a sugar unit to mention all the details of the machinery such as whether it will be a spring loaded device or not. Then the details have to be verified by the khandsari
Inspector-cum-assessing officer and he has to record a certificate on Form XIII itself in the following language :
“Verified that the details of machinery as given above are correct.”
9. Thereafter, the form has to be forwarded to the Sugar Commissioner. All this having been done, it is not open to the khandsari inspector after allowing the dealer to act in accordance with the option to take a round about turn and reject the option and proceed to make an assessment. If at all the option was wrongly accepted by the khandsari inspector, the remedy lay in a revision to the Sugar Commissioner in terms of Section 3B and that power could be exercised only within six months, in the present case, as is admitted, the erstwhile khandsari inspector had accepted the option and the same having been forwarded to the Sugar Commissioner, it was not open to his successor to reject the same and start action for making an assessment, in my view, therefore, the impugned orders are without jurisdiction and this writ petition deserves to be allowed.
10. The writ petition is, therefore, allowed. The Impugned order dated 25.8.1998 rejecting the option, the assessment order dated 7th September. 1998 and the appellate order dated 25th September, 1998, are hereby quashed. The petitioners will get their coats of this writ petition which I assess at Rs. 1,500 (one thousand five hundred).