9911796707
TMI Blog2008 (7) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... x upon the petitioner for the assessment years 2005-2006 and 2006-2007 on the sales made by the petitioner within the State of Uttaranchal of the goods manufactured in its new unit for which the eligibility certificate has been granted on October 22, 1999; (d) to issue any other suitable writ, order or direction as this honourable court may deem fit and proper in the circumstances of the case; (e) to award the cost of the petition to the petitioner. According to the petitioner, petitioner is a private limited company incorporated in the Indian Companies Act, 1956 and is registered under the Uttaranchal (U.P. Trade Tax Act, 1948) as adopted by Uttaranchal Adaptation and Modification Order, 2002 and is also registered under Central Sales Tax Act, 1956 with the Deputy Commissioner (Assessment), Trade Tax, Roorkee. The petitioner has its factory in the State of U.P. at Plot No. 51, Udyog Vihar, Surajpur Kasna Road, Greater Noida, which is a new unit established under section 4A of the U.P. Trade Tax Act (for short, "the Act") for manufacture of colour TV, air-conditioners and washing machines in pursuance of the notification dated February 21, 1997 issued under section 4A of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification dated February 21, 1997 for the period mentioned therein. The affidavit was sworn in by the then Deputy Commissioner (Assessment), Commercial Tax, Roorkee, wherein it was stated that the benefits of exemptions under section 4A of the Act stood ceased with the implementation of VAT in Uttaranchal. It was stated that the Act has been repealed by the VAT Act with effect from October 1, 2005 and the exemptions stood discontinued in view of the bar created under section 80(13) of the VAT Act. The respondents have also filed additional supplementary counteraffidavit. In paragraph No. 5 following averments were made: "5. That in reply to the contents of para 5 of the supplementary affidavit it is submitted that the State of Uttarakhand after its creation issued a subsequent notification on December 26, 2000; copy whereof is being filed herewith and is marked as annexure No. A.S. C.A. 2 to this affidavit, and after enforcement of VAT Act, 2005 the notification dated October 12, 2006 has been issued which does not have a retrospective effect. Hence petitioner is not entitled for the benefit of tax exemption with effect from October 1, 2005 to October 12, 2006. The copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the VAT Act. On the other hand, the notification dated December 26, 2000 is absolutely in accordance with section 4(2) of the Act." Writ Petition No. 1654 of 2007 (M/S) has been filed for the following reliefs: (a) A suitable writ, order or direction in the nature of certiorari be issued quashing the circular dated January 13, 2006 issued by the Commissioner of Taxes, Dehradun, respondent No. 2, as well as the circular dated January 4, 2006 issued by respondent No. 1. (b) A suitable writ, order or direction in the nature of certiorari be issued quashing the notice dated March 6, 2006 issued by the Deputy Commissioner (Assessment), Commercial Taxes, Rishikesh, i.e., respondent No. 3. (c) A suitable writ, order or direction in the nature of mandamus be issued restraining/prohibiting respondent No. 3 from imposing any tax upon the petitioner for the assessment years 2005-2006 and 2006-2007 on the sales made by the petitioner within the State of Uttaranchal of the goods manufactured in its new unit for which the eligibility certificate has been granted on December 20, 1999 an addenda to eligibility certificate on August 21, 2000. (d) To issue any other suitable writ, order or di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997 issued under section 4A of the Act for a period of 15 years with effect from November 8, 1998 to November 7, 2013. By virtue of section 87 of the U.P. Re-organisation Act, 2000, all enactments, the Acts, Rules and notifications which were enforced in the erstwhile State of U.P. were made applicable to the State of Uttaranchal. The notification dated February 21, 1997 was not modified, amended or altered by the State of Uttaranchal and the same is fully applicable to the petitioner also in respect of the goods manufactured at Sahibabad and sold by the petitioner from its branches situate in the State of Uttaranchal. On October 1, 2005, Value Added Tax Act (for short, "the VAT Act") has been enforced in the State of Uttaranchal (now Uttarakhand). Section 81 of the VAT Act has repealed the Uttaranchal (U.P. Trade Tax Act, 1948) Adaptation and Modification Order, 2002. After enforcement of the VAT Act, Principal Secretary, Finance, Uttaranchal sent a letter dated January 4, 2006 mentioning therein that the benefit of exemption under section 4A of the Act in respect of the units situated in the State of U.P. has been discontinued in the State of Uttaranchal in view of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner under notification dated February 21, 1997 for a period of 15 years with effect from December 31, 1998 to December 30, 2013. The grievance of the petitioner is that after enforcement of VAT Act on October 1, 2005, the Principal Secretary, Finance, State of Uttaranchal issued a circular on January 4, 2006 to the effect that the exemption granted under section 4A of the Act had been discontinued as per provision of section 80(13) of the VAT Act. Hence action should be taken in accordance with the directions of the State Government. In pursuance of the said circular dated January 4, 2006, respondent No. 2 issued directions to the assessing authorities to take action and the Deputy Commissioner (Assessment-6), Commercial Taxes, Dehradun issued notice dated February 2, 2006 for the months of October 2005 to December 2005 directing the petitioner to deposit the tax at four per cent. I have heard learned counsel for the parties and perused the record including the averments made in the memo of writ petitions, the supplementary affidavit, the counter-affidavit, supplementary counter-affidavit and rejoinder affidavit. The undisputed facts of the case are that the petitioners h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rebate of tax on the sale of goods by any dealer having his place of business in the State of Uttaranchal to the extent of exemption from or reduction in the rate of tax available to the manufacturing dealer having his place of business in the State of Uttar Pradesh on the sale of such goods, subject to the following conditions, namely: CONDITIONS (i) such goods are manufactured in a unit established in the State of Uttar Pradesh having eligibility certificate (validity commencing prior to November 9, 2000) issued under section 4A of the aforesaid Act for the manufacture of such goods; (ii) such goods are sold for the first time after their manufacture within the period of exemption or within the period in which five per cent monetary limit of exemption has been availed, whichever is earlier, after bringing them into the State by way of transfer other than sales by manufacturer having his place of business in the State of Uttar Pradesh; (iii) certificate issued by the assessing authority of the State of Uttar Pradesh is produced before the assessing authority of the State indicating therein that the amount has been reduced in the overall limit of exemption available to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions issued by the State Government or any orders or directions issued by the Commissioner under any provisions of the repealed Act or as the case may be, the Repealed Ordinance, or Rules made thereunder, and continuing to be in force on the day immediately before the date of commencement of this Act shall continue to be in force on or after such date in so far as they are not inconsistent with the provisions of this Act and the Rules made thereunder until they are repealed or amended." Relevant extract of clause (a) of sub-section (6) of section 4 of the VAT Act reads as under: "(6) Rebate on tax on certain purchases and sales: (a) Subject to such conditions as it may impose, the Government may, if it deems necessary so to do in the public interest, by notification in the Official Gazette, exempt the sale or purchase of any goods, or any sales or purchases made to or by a class of dealers or persons specified in the said notification from payment of the whole or any part of any tax payable under the provisions of this Act, and any notification issued under this section may be issued so as to be retrospective to any date not earlier than the date of commencement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f repealed Ordinance, shall continue for the remaining unexpired period as per provisions of section 76 of this Act and subject to such conditions and restrictions as the State Government may specify." At this juncture, a reference to the provisions of section 76(6)(b)(i) and (ii) of the VAT Act is necessary, which provide as under: "(b) The dealer who were enjoying exemption from tax for any period before the commencement of the Act, may, either- (i) continue to do so for the period remaining on that date out of the maximum period mentioned in eligibility certificate, and to the extent of remaining balance amount (amount of exemption from tax mentioned in the eligibility certificate less the aggregate of amount of exemption from tax as has been availed before the date of commencement of this Ordinance); or (ii) opt, in the prescribed manner, for benefit of moratorium for payment of tax in lieu of exemption from tax and such units shall be eligible for facility of moratorium to the extent of aggregate amount of hundred per cent of the amount of exemption from tax mentioned in the eligibility certificate and fifty per cent of the amount of fixed capital investment mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 5 of the Act. It is pertinent to mention here that the said notification, according to the State-respondents, was in existence while notification dated October 12, 2006 was issued. Having considered the provisions of the VAT Act referred to above read with the provisions of Notification dated December 26, 2000 it is crystal clear that the respondents could not have denied the exemption simply on the strength of sub-section (13) of section 80 of the said Act, particularly ignoring the provisions of sub-section (15) and section 76(6)(b)(i) and (ii) thereof. I am of the considered view that the petitioners are fully entitled to the exemption from tax granted to them under the eligibility certificate by the erstwhile Government of State of Uttar Pradesh and vide notification dated December 26, 2000 issued by the Uttaranchal Government for the period remaining on the date of commencement of VAT Act, i.e. October 1, 2005. From a perusal of record, it does not come out that petitioners had exercised option under clause (ii) of section 76(6)(b) of the VAT Act, within the stipulated period. Therefore, it shall be presumed that the petitioners desire to continue as per provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
