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2013 (4) TMI 405 - ALLAHABAD HIGH COURTEligibility Certificate cancelled in view of the effect of the notification Nos. 1340 and 1341 by which cold drinks had been placed in negative list - Held that:- Inspite of the fact that the Assessing Authority/Deputy Commissioner (Assessment) Trade Tax, Nazibababd was/is not the competent authority to issue the eligibility certificate under the provisions of 4-A of the U.P. Trade Tax Act, 1948 and further the said authority has no power to amend the eligibility certificate but even then, the Divisional Level Committee had issued the eligibility certificate to the petitioner's unit on 22.1.2001 under Section 4-a of the U.P. Trade Tax Act in utter violation of the Notification No. 2008/2009 dated 29.9.1999. There is no dispute in the fact that on the date of grant of eligibility certificate by the Divisional Level Committee, the Cold Drinks were already placed in the negative list and this very vital fact was not taken into consideration. On coming to the notice of the said facts, the Joint Commissioner (Executive), Commercial Taxes, Nazibabad issued a notice dated 3.5.2008 to the petitioner under Section 10-B of the Act and revised the order dated 30.6.2004 passed by the Deputy Commissioner (Assessment) Trade Tax, to which the petitioner has submitted his reply. Thereafter, an order dated 29.5.2008 was passed by the Joint Commissioner (Executive), Commercial Taxes, excluding the amount of additional fixed capital investment as included by the Deputy Commissioner (Assessment), Trade Tax vide order dated 30.6.2004 to the eligibility certificate. Being aggrieved by the order dated 29.5.2008, the petitioner approached this Court at Allahabad by filing Civil Misc. Writ Petition No. 1265 of 2008, in which, a Division Bench of this Court at Allahabad, vide ad interim order dated 4.7.2008, stayed the order dated 29.5.2008. Counter affidavit was filed on behalf of the State in the above writ petition and the petitioner withdrew the writ petition on 13.11.2009. The petitioner, thereafter, preferred an Appeal, bearing No. 002/2009 before the Trade Tax Tribunal, Moradabad against the order dated 29.5.2008, without disclosing about filing and the pendency of writ petition No. 1265 of 2008. Thereafter, the petitioner has preferred the instant writ petition, challenging the power of Commissioner to cancel the Eligibility Certificate, while in paragraph 25 of the writ petition No. 1265 of 2008 filed by the petitioner before this Court at Allahabad, the petitioner itself had acknowledged the power of Commissioner to cancel/amend/modify the Eligibility Certificate under Section 4 A(3) of the U.P. Trade Tax Act. After hearing the parties' counsel, judgment was reserved. Prior to pronouncement of the order/opinion, the petitioner has preferred an application for stay (C.M.Application No. 107227 of 2012), inter alia on the grounds that the question involved in the instant writ petition is also related to the proceedings to the subsequent Assessment Year and the matter is pending before the Full Bench of Commercial Tax Tribunal, U.P. Accordingly, in order to meet the ends of justice and equity, this Court had stayed further proceedings in Second Appeal Nos. 11 of 2011 and 3 of 2010, till delivery of the judgment. Thus, from the facts averred above, it is crystal clear that the petitioner has not disclosed the above material and full facts while filing the instant writ petition, though the same was already in the knowledge of the petitioner and has approached this Court with unclean hands. Therefore, no hesitation to mention that the instant writ petition has been filed by the petitioner by suppressing and concealing the above vital facts, which go to the core of the matter involve. In view of the foregoing discussion, without delving into other grounds of challenge, no interference with the show cause notice or grant indulgence to the petitioner in exercise of discretionary writ jurisdiction under Article 226 of the Constitution of India. Thus leave it open to the petitioner to file its reply before the concerned authority raising all such points as may be available under law and if the petitioner approaches the concerned authority, it shall take appropriate decision in accordance with law.
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