Court No. - 33 Case :- SALES/TRADE TAX REVISION No. - 443 of 2002 Petitioner :- M/S Hotz Industries Ltd., G.B.Nagar Respondent :- The Commissioner Of Trade Tax, U.P., Lko. Petitioner Counsel :- Piyush Agrawal,Bharat Ji Agrawal Respondent Counsel :- S.C. Hon'ble Bharati Sapru,J.
Heard learned counsel for the assessee and the
learned standing counsel for the State.
This revision has been filed by the assessee under
Section 11 of the U.P. Trade Tax Act, against the
order of the Tribunal dated 12.7.2002.
The questions of law referred to are hereunder:
(1) Whether a conscious decision having been taken
by the Divisional Level Committee, prior to the
issuance of the eligibility certificate under Section
4-A of the Act, regarding the process of dyeing
being covered by the definition of the word
‘manufacture’ under Section 2(e-i) of U.P.Trade Tax
Act, as is clear from the notice dated 19th July,
1999 and 19th December, 1999 and the replies
given by the applicant, hence no proceedings under
Section 4-A(3) of the Act can be legally taken in
view of the law laid down by this Hon’ble Court in
the case of Mansarovar Bottling Company Ltd.
vs. Commissioner of Trade Tax ,(1999 UPTC
page 864) ?
(2) Whether the eligibility certificate having been
granted to the applicant in pursuance of the
unanimous decision of the Divisional Level
Committee, as is clear from the findings of fact
recorded by the Trade Tax Tribunal that all the
members of the Committee have signed the
decision of the Committee and Shri B.P.Shukla, the
Deputy Commissioner (Executive) has also affixed
his signature of concurrence, no proceedings under
Section 4-A(3) of the Act could have been taken by
the Commissioner of Trade Tax to cancel the
eligibility certificate ?
(3) Whether, even if the decision of the Divisional
Level Committee was erroneous, the Commissioner
of Trade Tax could have filed an appeal under
Section 10(2) of the U.P.Trade Tax Act against the
decision granting the eligibility certificate but the
Commissioner cannot sit in appeal against the
decision of the Divisional Level Committee
granting the eligibility certificate ?
(4) Whether rule 25 (3)(d) of the U.P.Trade Tax
Rules is not applicable in view of the clear and
categorical finding of fact recorded by the Tribunal
(at page 8) of the certified copy of the judgment
dated 12.7.2002 that the decision of the Committee
was reduced in writing and was signed by all the
members of the Committee and the Deputy
Commissioner (Executive), Trade Tax as a member
of the Committee has affixed his signature of
concurrence and has not appended any dissenting
note ?
(5) Whether, in any view of the matter, the order
passed under Section 4-A(3) dated 11th March,
2002 and the order of the Tribunal dated 12th July,
2002 are erroneous and illegal, being contrary to the
law laid down by this Hon’ble Court ?”
The Tribunal in its order has recorded that the
Divisional Level Committee which was considering
the matter of the assessee with regard to Section 4-
A of the Act, i.e., the eligibility certificate sought
by him in respect of setting up a new unit which
was being considered a new unit.
A new unit was originally not being consented to by
one member Sri Vipin Singh. However, this dissent
was not made in writing and subsequently the
eligibility certificate was granted on 21.8.2000 with
the consent of Sri B.P.Shukla. Notice to cancel the
eligibility certificate was subsequently issued on
10.9.2001 after more than one year. The other fact
which admitted is that there was no concealment or
any misleading information given by the assessee.
In view of the decision of this Court in the case of
Mansarover Bottling Co. Ltd. v. Commissioner
of Trade Tax, 1999 UPTC 864 and also followed
in M/s Chetna Chemicals Pvt. Ltd., Gorakhpur
vs. Commissioner of Trade Tax, reported in 2007
UPTC 1299, I am firmly of the view that the
cancellation of the eligibility certificate under
Section 4A(3) was not warranted and justified in the
facts and the circumstances of the case rather, it was
open to the revenue to file an appeal under Section
10(2) of the U.P.Trade Tax Act but it did not do so.
Consequently, the order dated 12.7.2002 and the
notice dated 11.3.2002 issued under Secdtion 4A(3)
are set aside. The eligibility certificate is restored to
the assessee.
This revision is allowed.
Order Date :- 18.1.2010
AKJ