TMI Blog2010 (2) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's application dated January 16, 2006 on the ground that the same was filed beyond the statutory period of limitation, i.e., 60 days as provided in said section is an action beside being contrary to law is also in violation of principles of natural justice and fair-play. As such the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 cannot sustain under law and the matter is remanded back to the said authority to consider and decide the application of the petitioner under sub-section (2B) of section 4A of the U.P. Trade Tax Act, 1948 for amendment of eligibility certificate already granted in favour of OSL which merged with the petitioner's company after providing due opportunity of hearing, in accordance with law. - W.P. No. 9751 of 2009 - - - Dated:- 18-2-2010 - RAKESH TIWARI AND ANIL KUMAR , JJ. The judgment of the court was delivered by ANIL KUMAR J. By means of the present writ petition, the petitioner has challenged the assessment order dated September 5, 2009 passed by opposite party No. 3 for the assessment year 2005-06 and the order dated October 22, 2009/November 3, 2009 passed by opposite party No. 2. Heard Shri Ashok Kumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer. The same is quoted hereinbelow: Section 4A, sub-section (2B). If there is discontinuation of business, within the meaning of sub-section (1) of section 18, of the manufacturer who was eligible for exemption from or reduction in rate of tax under sub-section (1), whether such exemption from or reduction in the rate of tax was already granted or not, and [if he is succeeded by another manufacturer, by means of sale, licence, contract, lease, managing agency or in any other manner, such successor-manufacturer may,] subject to the provisions of sub-section (3), apply to the officer competent to grant eligibility certificate under clause (d) of sub-section (2), within sixty days of such succession, for the grant, under this section of exemption from or reduction in the rate of tax for the unexpired portion of the period for which exemption from or reduction in the rate of tax was or could be granted to the former manufacturer: Provided that the aforesaid officer may, in its discretion and for adequate and sufficient reasons to be recorded in writing, entertain an application moved within six months of the date of the expiration of the period specified in this sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 3, 2009 thereby rejecting the petitioner's application moved under sub-section (2B) of section 4A of the Act. Accordingly, an application for amendment was moved by the petitioner for challenging the said order passed by opposite-party No. 2. It was allowed and necessary amendments have been incorporated in the writ petition, by the petitioner in order to challenge the order dated October 22, 2009/November 3, 2009 passed by opposite party No. 2. Shri Ashok Kumar, learned counsel for the petitioner, while challenging the orders impugned in the writ petition, i.e., order dated September 5, 2009 passed by opposite-party No. 3 and the order dated October 22, 2009/ November 3, 2009 passed by opposite-party No. 2, has submitted that so far as the assessment order dated September 5, 2009 passed by opposite party No. 3 for the assessment year 2005-06 is concerned the said action on the part of opposite-party No. 3 was totally illegal, arbitrary and without jurisdiction as the same was passed during the pendency of the petitioner's application under sub-section (2B) of section 4A of the Act for requisite amendments in the eligibility certificate issued under section 4A being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad v. Commissioner of Sales Tax, U.P. [1989] UPTC 1336. Shri H.P. Srivastava, learned counsel for the respondents, in rebuttal has raised preliminary objection to the effect that again the assessment order dated September 5, 2009 passed by the assessing authority (opposite-party No. 3) for the assessment year 2005-06 and against the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2, the petitioner has statutory alternate remedy available under section 9 and under section 10 of the U.P. Trade Tax Act, 1948, respectively, as such the present writ petition is liable to be dismissed on the said ground. We have heard learned counsel for the parties and perused the record. On the basis of the submissions made by the counsel for the parties in the present case, the disputes which are involved in the present writ petition can be summarized and crystallized as under: (a) Grievance of the petitioner against the assessment order dated September 5, 2009 passed by opposite-party No. 3 for the assessment year 2005-06. (b) Grievance of the petitioner in respect to the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 3. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternate remedy before the appellate authority then in that circumstances, the appeal of the petitioner shall not be dismissed on the ground of limitation by the appellate authority but the same may be adjudicated and decided on the merits after hearing the parties concerned in accordance with law. The next grievance which is agitated by the petitioner in the present writ petition, against the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 is concerned, it is not disputed as per facts of the case that order dated November 16, 2005 was issued by the BIFR., dispatched on November 21, 2005, received by the petitioner on November 29, 2005 and thereafter the petitioner had submitted the application on November 16, 2006. Hence the said application was well within the statutory period of limitation of 60 days as provided under sub-section (2B) of section 4A as the starting point of the period of limitation for the purposes of filing of the application under the said section on the part of the petitioner will be the date when he received the order dated November 16, 2005 issued by the BIFR and not from the date of issuance by the authority concerned (BIFR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequences the same should not be passed without giving an adequate and reasonable opportunity of hearing to a person against whom the same is passed as the justice should not only be done but appears to be done and if any action by an authority which prevents justice from being seen to be done is nothing but amounts to the action which is contravention of the principles of natural justice and without jurisdiction. As such the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 cannot sustain under law. So far as the preliminary objection by learned counsel for the respondent, Shri H.P. Srivastava, that the petitioner has got statutory alternate remedy against the order dated October 22, 2009/November 3, 2009 passed by opposite-party No. 2 under section 10 of the Act, is concerned the said argument is misconceived as in the present case, the order dated October 22, 2009/November 3, 2009 has been passed in violation of the principles of natural justice and merely on the technical ground, in view of the law as laid down by the apex court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [1988] 8 SCC 1 where it has been held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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