TMI Blog2009 (7) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... units were separate and both the units are manufacturing different varieties of ice-creams bearing different code numbers. The revisionist has failed to establish that the director of the company who owned the existing unit controlled the unit themselves and the unit of opposite-party is nothing, but one man show of the one director. It is settled law that exemption can only be denied when the company, as a whole, has interest in other units, which is missing in the instant case. Revision dismissed. - 27 of 2002 - - - Dated:- 16-7-2009 - RAJIV SHAA RM , J. RAJIV SHARMA J. Heard counsel for the parties. This revision has been filed by the Commissioner, Trade Tax, against the judgment and order dated September 24, 2001 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the existing unit. It further considered the fact that new unit established by the opposite-partycompany was subsequently taken over by Vadilal Industries Ltd., on September 22, 1997. In appeal, the Tribunal while setting aside the order passed by the Divisional Level Committee held that undue weightage to the SIB Survey Report has been given ignoring the report dated July 30, 1999 prepared by Sri R.B. Yadav, Assistant Commissioner (Assessment), Bareilly. The Divisional Level Committee erred in not considering the fact that both the units were separate and were not situated in one premises. They were also manufacturing different varieties of ice-cream with different code numbers. The learned standing counsel, appearing for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee was fully justified and was not open for judicial review by the learned Appellate Tribunal as no illegality or infirmity was caused to the opposite party. He submits that the Divisional Level Committee consists of Divisional Commissioner, Deputy Commissioner (Trade Tax) and Additional Director of Industries and the decision to grant eligibility certificate for exemption from payment of tax is purely subject-matter and jurisdiction of the Divisional Level Committee but the Tribunal in reversing the said finding has exceeded in its jurisdiction and passed the impugned order. Counsel for the revisionist further submits that even if the opposite-party was aggrieved by the decision of the Divisional Level Committee, the matter ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituates at D-23, Parsakhera, Bareilly is adjacent to the other unit at D-24, Parsakhera, Bareilly owned by Vadilal Industries Limited, hence it is not a new unit under section 4A of the Act. Vadilal is a separate company incorporated under the Companies Act, while the dealer-opposite party is a separate company incorporated under the Indian Companies Act. Since the Sales Tax Department itself has granted separate registration to the opposite party-company, which is a separate juristic entity as a dealer, hence the factory set up by the opposite party comes within the purview of new unit as defined in the Explanation (2) to section 4A. Before dealing with the merits of the case, it would be appropriate to refer the definition of new un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Trade Tax Tribunal has relied upon the report dated July 30, 1999 of the Assistant Commissioner (Assessment I), Trade Tax, Bareilly and after going through the said report, the findings of fact were recorded by the Tribunal while deciding the appeal, as quoted below: We feel that the above quoted exhaustive report of the Assistant Commissioner (Assessment) ought to have dispelled many doubts raised in the mind of the DLC before giving a finding that M.F.H. was only existing on paper for purposes of tax evasion. The M.F.H. never ceased to exist and remained as a juristic person for all purposes of intent. The mere fact that both units had common marketing agent and manufacture sale targets were commonly prepared, would not be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to one person being Director of two companies held as under: (at page 96 of STC) . . . In view of the Explanation added by the U.P. Act No. 28 of 1991 to section 4A unless it is established that the petitionercompany as such has interest in the existing unit, exemption under section 4A cannot be denied to the petitioner-unit. If one of the Directors of the petitioner-company owns the existing unit, it cannot be said that the petitioner-company had interest in the existing unit. Sri Shanti Swarup Goel, one of the Directors of the petitionercompany, owned the existing unit and, therefore, true factual position is that only the said Director has interest in the existing unit and not the petitioner-company as such . . . In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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